In a recent and groundbreaking decision, the Federal Regional Court of the 2nd Region recognized, in an unprecedented way, the possibility of a company (focused on the technology sector and digital means of payment) taking advantage of PIS/COFINS credits on expenses to meet the requirements of the General Data Protection Law (LGPD).
The decision of the 4th Specialized Panel of the said court was to the effect that the right to credit stems from the fact that the law itself determines the adoption of measures for the protection of third party data by the company, whose requirement is directly related to its activity, which includes the financial approximation of the commercial establishment with the final consumer, due to the use of shopping applications.
In her vote, the judge reporting on the case, Carmen de Arruda (5112573-86.2021.4.02.5101/RJ) stated that “the impetrant’s corporate purpose is the development of activities related to the provision of digital payment services, so that the expenses with the implementation of measures provided for in the General Data Protection Law are directly related to the company’s core business”, falling within the scope of essential inputs.
The judge cast her vote in accordance with the so-called “subtraction thesis” recommended by the STJ, through which it is possible to identify goods and services whose withdrawal implies the unfeasibility or loss of quality in the provision of a service or product. According to the rapporteur, although the TRF has already ruled to the contrary, the characteristics of the specific case, especially with regard to the economic activity carried out by the company, justified the decision in favor of crediting.
As a result of this new understanding by the Regional Court, it is possible to say that countless companies, especially those that work with a large volume of data or have online commerce as a major part of their turnover, may benefit from favorable court rulings aimed at recognizing the right to credit and the actual refund of amounts paid unduly (or in excess) over the last five years, including through offsetting against taxes due.
Therefore, at this time, it is important for companies in this segment to be aware of the possibility of filing a legal claim for restitution and also requesting recognition of the right to offset these credits, making it essential to have the support of a legal consultancy specializing in the tax area, which will be able to accurately analyze the feasibility of filing the lawsuits.
