The Federal Regional Court of the Fourth Region-RS (TRF-4) recently decided that the amounts related to indirect exports, which is the one in which the sales made outside the country are intermediated bytrading companies, must be excluded from the calculation of the Social Security Contribution on Gross Revenue (CPRB).
The TRF-4’s understanding is contrary to that of the Federal Revenue Service which, based on Normative Instruction (IN) No. 1,436/2013, interprets that the tax immunity provided in Article 149 of the Federal Constitution and reiterated in Law No. 12,546/2011, which established the CPRB, does not cover indirect exports (through trading companies), but only the direct ones.
According to the IRS, the intermediary(trading), established in Brazil, acquires the products that will be exported in the domestic market. For the Tax Authorities, the manufacturing company sells its products to a Brazilian company still in the national territory, earning revenue in Brazil. For this reason, this revenue must compose the CPRB calculation basis and, therefore, must be demanded, and there is no immunity.
However, for the 1st Panel of TRF-4 the limitation brought by IN No. 1.436/2013 is illegal and restricts the scope of the constitutional immunity, because the law does not distinguish one operation from another, importing only that the revenues to be excluded from the CPRB calculation basis arise from exports.
Thus, our recommendation to exporting customers in a situation similar to the one in the case being judged here has been to discuss this requirement through legal action, in order to obtain the right to (i) exclude from the CPRB calculation basis the revenues from sales to commercial exporters and (ii) allow the deductibility of revenues from indirect exports as well.
The Tax Team is available for further clarifications on the subject.