A tributação nos contratos de compartilhamento de custos e despesas

Abstract

The present study has as object the tax treatment of the cost sharing agreements in the Brazilian legal order, evaluated based on the criteria of legal certainty and efficiency. These are contractual arrangements used by companies and economic groups to increase efficiency in their operations, better allocating their resources and reducing the costs inherent to their activities, in order to adapt to the highly competitive business environment of these times of intensification of the economic globalization. Through these instruments, companies rationalize the acquisition, provision and use of goods, services and rights of common necessity to the participants of the sharing; and also the funding of research and development of new technologies, intangibles and products, services and rights that will imply benefits for the members of the apportionment. Although the cost sharing agreements are widely used by business groups and partner companies, the Brazilian legal system does not currently have rules that govern the matter, wheter in the civil, tax or commercial ambit. The guidance on the tax regime of these contracts follows from the doctrine, the opinions of the supervisory authorities, the jurisprudence of the administrative tax authorities and the jurisprudence of the Courts. The multiplicity of sources and manifestations produces a complex scenario, marked by several controversies. Thus, it is of great importance to carry out an empirical study capable of critically identifying and examining the understanding of the main state entities and doctrine on the various issues that arise from this theme, always taking into account the consequences of these positions, as it guides the economic analysis of law doctrine. In order to do so, it is analyzed, initially, through an examination of the specialized literature and the solutions of consultation of the Receita Federal, the fundamentals of cost sharing agreements and the main factual, contractual and tax issues, with a special focus on possible taxes and tax rules applicable (IR, CSLL, PIS, COFINS, PIS-Importação, COFINS-Importação, CIDE, ISS; transfer pricing rules). Based in these foundations, qualitative and quantitative empirical research is promoted on the jurisprudence of the Courts on the matter, in particular of the STF, STJ, TRF3, TJSP, TRF4 and TJRS, in order to determine the position on the dogmatic aspects, the number of decisions, the time for processing decisions, the necessity to go through all instances for the resolution of the case, the scope (temporal/spatial/material/subjective) of the decision, the material depth (contract requirements, incident taxes, etc) of the decision, the biding nature of the decision, the particularities of each case and the feasibility of the decisions. In view of this robust set of information, the degree of legal certainty – understood as stability, certainty and fairness of orientation – and efficiency – subdivided in celerity, economicity and feasibility – that the Brazilian Courts offer to taxpayers and legal system, allowing the visualization of the merits and deficiencies of the homeland juridical order in this field and the reflection on possible improvements.