One decade ago, determining of the collections from Federal Tax of PIS (Social Integration Program) and Cofins (Social Welfare Contribution) was a fairly simple task, because they were incident primarily on the adjustments of sales at rates of 0.65% and 3% respectively. There were a few exceptions and the rules were somewhat clear and readily understandable.
In recent years, however, that relatively easy collection proceeding has become to be extremely complicated and the Federal Contributions began to focus on the cumulative schemes, non-cumulative tax substitution, single phase, zero rates, volume, etc.. During this period imports also went to be taxed.
As we can see ahead, it is described in general terms the regimes of PIS and COFINS Taxes. However, due to the complexity and dynamics of tax legislation, it is highly recommended to deep into details of each case to enable its practical application.
1) Regime of Cumulative Incidence
The calculation is based on gross operating revenues of the corporation, no deduction in respect of costs, expenses and charges. In this regime, the rates of the Contribution to PIS and Cofins are respectively 0.65% and 3%.
The legal entities of private law, and those treated as similar by the law of income tax, which determines the income tax collection based on the estimated or arbitrated profit, are subject to the regime of cumulative incidence.
Pursuant the provision of article 10, of Act 10.883/2003, The revenues, listed in the law, it subjects the enterprises to a Regime of cumulative incidence, even though primarily subjected to the regime of non-cumulative incidence. In this case, the nature of enterprise revenue is preponderant and must be taken in consideration.
2) Regime of Non-Cumulative Incidence
The regimes of Contribution Incidence to PIS and Cofins were passed in December 2002 and February 2004 respectively. The statute of the Contribution to non-cumulative PIS is legally prescribed in the Act 10.637/2002 and Cofins introduced by the Act 10.833/2003. Through the implementation of this regime, it is allowed the discount of credits calculated on the base of costs, charges and expenses of enterprise. In this regime, the rates of the Contribution to PIS and Cofins are respectively 1.65% and 7.6%.
The legal entities of private law, as well as those treated as similar by the law of income tax, which determines the amount of income tax based on its Real Profit, all of them are subject to regime of non-cumulative incidence, except: financial institutions, credit unions, legal entities whose purpose is the securitization of mortgages and financial, health care companies, private companies operating security services and transportation of values mentioned by the Act 7.102/1983, and cooperative societies (except the agricultural production cooperative societies and cooperative societies of consumption).
3) Differentiated Regimes
The common feature is some differentiation in relation to the calculation of the taxation base or the applicable rate. Most of the differentiated regimes refers to special incidence on the type of revenue and not to the enterprises, should the enterprise still calculate the Contribution to PIS and Cofins in the regime of non-cumulative incidence or cumulative, depending to the case, on other income.
In general, the different regimes can be subdivided into:
a) Basis of calculation and different rates, where they fall: the financial institutions, nonprofit organizations and legal entities of public law;
b) Basis of calculation differentiated: trade promotion companies (factoring), foreign exchange transactions carried out by an institution authorized by the Central Bank of Brazil and the revenues related to the sale of used vehicles, purchased for resale;
c) Tax Substitution: cigarettes and new vehicles of the corporation manufacturer;
d) Concentrated aliquots: fuel, jet fuel, pharmaceuticals, vehicles, new tires, beverages, and packaging and biodiesel;
e) Reduced Aliquots: naphtha, exempt paper, destined for the printing of periodicals, paper for the printing of newspapers, certain vegetables and fruits, aircraft parts, spare parts etc.., semen and embryos, the Manaus Free Zone (MFZ) , vehicle dealers, fertilizers, pesticides and other, piped natural gas, coal, chemicals and pharmaceuticals, books, fuel, beverage and packaging, financial revenues, Digital Inclusion Program and other special arrangements.
For the last, as if all of this complexity of set of arrangements and exemptions around these taxes wasn’t enough to raise questions and doubts about it, the Brazilian Federal Government has increased its revenue by approximately 45% in PIS and 70% of collection from Cofins, far outpacing the growth of Gross Domestic Product - GDP in the same period. Bearing in mind the above exposed on the Federal Taxes system in force, we come up to a sad but a real conclusion, it is plain to see that by solely remodeling the existing model of tax collection the Government was able to withdraw even more from the taxpayers. This conclusion highlights each time more the need of assessment and participation of Tax Lawyers to enable a suitable and fair tax payments, lawsuits against an eventual excessive tax collection, tax planning and financial health to the corporations.
Evandro G. Estebanez
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