Anuário da Indústria de Implementos Rodoviários 2020

106 ARTIGO | ARTICLE | ARTÍCULO T here are two ways of calculating contributions to the Social Integration Program (PIS) and Contribution for the Financing of Social Security (COFINS) taxes - cumulative and non-cumulative. However, some products must use a different calculation, called “single-phase incidence”, as applies to those who manufacture highway implements to order for end consumers (transport companies, for example), since these goods are covered in article 3 of Law 10,485/2002. The single-phase incidence of PIS and COFINS occurs with the attribution of tax liability to the manufacturer or importer of specific products, such as highway implements, which calculates and collects PIS and COFINS at a higher rate than normally applied in cumulative and non-cumulative systems, to prematurely collect taxation of all subsequent stages, from production to the final stage of trading these products. The single-phase system has been criticized, mainly because of the fact that crediting PIS and COFINS by distributors and traders is impossible, because the legislation prohibits it under the argument that they are subject to a zero rate in these contributions, which has generated many questions. In the end, we are talking about anticipation of payment by the manufacturer and the importer, not tax relief, which we have managed to reverse through the courts. It is worth saying, this Normative Instruction consolidated all the rules inherent to the PIS and COFINS in a single standard, allowing us to have, in a regulatory manner, the one-phase regime of contributions to On the other hand, the manufacturer and the importer are excessively burdened, especially those who opt for the National Simple and the presumed profit modes, because they anticipate taxes at a high rate of 13.1%, which certainly is reflected in their cash held. In the specific case of National Simple, the discrepancy is even greater, despite being a differentiated regime established by Complementary Law 123/2006 – National Simple, it is also subject to single-phase taxation according to the Brazilian Federal Revenue Service, which in October 2019 issued Normative Instruction 1,911 to regulate the calculation, collection, supervision, and administration of the Contribution to PIS/Pasep, COFINS, contribution to PIS/Pasep-Import and COFINS-Import. It is worth saying, this Normative Instruction consolidated all the rules inherent to the PIS and COFINS in a single standard, allowing us to have, in a regulatory manner, the one-phase regime of contributions to the provisions of the aforementioned provision, there will be a single-phase incidence provided for in Law 10,485/2002, regardless of the tax regime applicable to the industrial establishment and importer. It should be noted that Complementary Law 123/2006, when instituting the Simples Nacional, took care of this issue. The reading of paragraph 4a of article 18 of this Complementary Law allows us to confirm that the single-phase regime applies, similarly, to companies opting for the National Simple. It should be noted, finally, that the Internal Revenue Service of Brazil has already positioned itself on the subject in the Consultation Solution DISIT 64/2013. In response to the consultation formulated by a given taxpayer, the agency agreed that the single-phase incidence for companies of the Simples Nacional would be applicable. Thus, it is advisable to conduct periodic studies to verify which tax regime is the most advantageous for each company, avoiding the false impression of economy with the regime of the national simple. Returning to the general aspects of the single- phase regime, a practice adopted by industries and which generates many doubts is tax planning, especially with regard to the possibility of segregation of business activities, in order to divide the part of industrialization and wholesale, in order to practice lower rates in production subject to the single-phase regime and, therefore, which, , in principle, is subject to the incidences of PIS, COFINS and IPI, to then add value to your product in the wholesale stage, which as a rule is dishonored from these taxes. This results in inspections by concealment, absence of business purpose, underbilling among others, ending in the disregard of the commercial operation with the collection of PIS and COFINS in the single-phase regime, which was annulled through the tax administrative process, worth the lower taxation adopted by companies through the segregation of activities, because there was no specific anti-elisive standard for PIS and COFINS, which would give companies room to structure their business operations. It turns out that the Administrative Council of Tax Appeals changed this understanding, because in addition to the legal issue, it began to analyze the evidence produced in the administrative process to confirm whether segregation has operational, logistical and economic foundations, or if it was something simulated, to circumvent single-phase taxation, so it is necessary that tax planning is actually carried out with the best technique and rationale , ensuring companies the desired economy. Single-phase PIS and COFINS By Fabrício da Silva Tax Lawyer, CEO of FDS Economia Tributária & Blindagem Patrimonial