Federal Revenue Service determines that marketplace should only pay taxes on commissions paid by shop owner

The Federal Revenue Service issued a positive guidance for companies that intermediate online product sales through marketplace platforms as it analyzed a company’s inquiry regarding the inclusion, in its gross revenue, of amounts received from buyers but which are passed on to the actual sellers and partners.

The guidance is found in Query Solution No. 170 of 2021 (COSIT SC No. 170/21), published by COSIT (General Taxation Coordination), whose understanding is that the gross revenue of marketplace companies, for PIS, COFINS, IRPJ and CSLL taxation purposes, corresponds to the remuneration received from the provision of intermediation services (commissions), not from the amount of the intermediated product.

It should be noted that such service provision must be formalized by contractual documents that easily differentiate the rights and duties of both parties involved, as federal tax authorities stress that the guidance of COSIT SC No. 170/21 is only applicable where the legal relationship between the parties involved is well defined.

As understood, the seller is the party responsible for issuing the invoice for a product to the final consumer, while the marketplace is responsible for issuing an invoice for the provision of intermediation services, with the respective amount of the commission charged.

Considering the dynamics of the virtual environment, it is known that not all marketplace companies operate in this way, with sellers using the platform to reach their final consumers. In certain cases, the marketplace platform itself has its own products and services, corresponding to a true hybrid platform.

There are also hypotheses in which the marketplace platform charges its customers not only a commission, but also amounts for certain facilities offered, such as storage and freight.

Therefore, despite COSIT SC No. 170/21 being the first statement of the Revenue in this regard and generating a positive impact on marketplace businesses, as the tax base will be reduced considerably, the guidance does not apply to all operations involving marketplace.

Today, the largest marketplaces are Mercado Livre, Magazine Luiza, Amazon, Americanas and Via (Casas Bahia and Ponto).

Justice authorizes PIS/Cofins credits on expenses with online stores

In September this year, the 22^nd Federal Civil Court of São Paulo authorized an injunction that benefited an electronic equipment company to obtain PIS and Cofins credits on expenses with fees charged by online platforms. The Attorney General of the National Treasury (PGFN) warned that it will appeal against the decision.

According to the Brazilian Retail and Consumer Society, the five largest marketplaces in the country totaled R$123.9 billion in sales in 2020, an increase of 81% compared to the previous year.

Written by Marcos Satler, Content Assistant at Drummond advisors, and Camila Cabral, Tax Consultant at Drummond advisors