How the CBS May Affect Marketplace Operators and the Digital Economy

The adaptation of the consumption taxation system to the digital economy returned to the agenda with the Tax Reform

The Covid-19 pandemic boosted the digital economy. In Brazil, between April and June, months when social distancing reached peaks, 5.7 million customers made their first purchase over the internet (data released by Neotrust/Compre&Confie, a market intelligence company, measuring consumer movement)[1].


This phenomenon highlights an agenda that was being discussed both at national and international levels: the adaptation of the consumption tax system to the digital economy. The taxation of this sector is a central topic of discussion at the OECD (Organization for Economic Cooperation and Development) since 2013. At the same time, European countries have created taxes on digital services, in an attempt to offset the difficulty in collecting the CIT (Corporate Income Tax) from companies like Google, Amazon and Facebook.

Brazilian tax reform proposal

The tax reform proposed by the Federal Government, in one of its points, follows this trend. As a replacement for PIS and COFINS, the project creates the Contribution on Goods and Services (CBS), at the rate of 12%, and attributes to digital platforms the responsibility for payment of the CBS levied upon transactions carried out in the platform whenever the selling entity does not issue an electronic invoice. In practice, the Federal Government's tax reform proposal directly affects marketplace operators, which would become responsible for the payment of CBS owed by entities (sellers) that fail to issue invoices.

Tax authorities holding marketplace operators liable for taxes is not something new. Especially at the state level, it has become a tendency to attribute to digital platforms the responsibility for reporting transactions taking place in their virtual environments and even for the collection of the ICMS levied on those transactions. The State of São Paulo, for example, determines that marketplace operators must provide Treasury with information about sales or services their clients perform through them, as well as verify their client's registration status. However, the obligations imposed on marketplace operators by states may present legal problems and have been criticized by companies within the segment.


Marketplaces are continually held responsible for tax, mainly at the state level


Marketplace intermediation

The concept of digital platform brought by PL 3,887/2020 (“any legal entity that acts as an intermediary between suppliers and buyers in the sale of goods and services in a non-face-to-face manner, including in the commercialization carried out by electronic media”) is too broad and covers all types of operations carried out by marketplace operators, which can either be a simple intermediation (bringing the seller and the consumer together) or involve complex structures involving logistics, payment tools, sales, etc.

In this regard, when the marketplace is a mere intermediary, it has no interference with the issuance of invoices by sellers, a trigger which, nevertheless, activates liability for payment of the CBS, which demonstrates the arbitrariness and impertinence of the responsibility sought to be attributed to digital platforms. Furthermore, considering that, in principle, CBS would be subject to non-cumulativeness (which allows that previously paid CBS to be offset against the CBS due), it seems at least incoherent to attribute the responsibility for the collection of the contribution to a third party (in this case, the marketplace) who cannot make use of CBS paid in prior transactions.

Questionable Legality

The Brazilian tax system is largely based on the Federal Constitution (CF) and on the National Tax Code (CTN). The latter deals with joint and several liabilities (article 124) and third-party liability (articles 128 to 135) for the payment of taxes. Such rules expressly determine who can be considered responsible for the payment of the tax (jointly and severally, or as a third party linked to the taxable event). It is possible that marketplace operators do not fit within any of the categories listed in such articles.

Impact on import transactions

The Federal Government's tax reform project also affects service import transactions carried out by individuals, whereby digital platforms shall be responsible for collecting CBS and must therefore register with the Federal Revenue Service of Brazil to fulfill the respective obligations. Here, however, the Federal Government's PL has been less criticized, even by entities within the sector, because this determination follows the global orientation, led by the OECD, to tax sales of goods and services at their destination.

Digital platforms will be responsible for collecting CBS

Summarizing

In summary, the tax reform bill promises to impact the digital economy, a sector that gained prominence in the current health crisis that plagues Brazil and the world. While it is clear that the proposal follows the international trend to adapt consumption taxation to the digital economy, it represents certain complications for online commerce, since it transfers the inspection obligation to marketplace operators, impacting imports, small businesses, and, for some segments, the viability of digital commerce itself


[1] https://www1.folha.uol.com.br/mercado/2020/07/comercio-digital-ganha-57-milhoes-de-consumidores-e-varejo-diz-que-eles-vieram-para-ficar.shtml

Autora

Andreia Moraes Silva

Sócia

Pós-Graduanda em Administração de Negócios (MBA) pela Fundação Getúlio Vargas.

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