Daniel Tanganelli, partner at Tanganelli e Chaves Advogados, was featured in a story by the newspaper Valor Econômico that addressed a legal theory developed by the firm. Excerpts follow.

By Laura Ignacio – Valor Econômico

 A luxury hospitality company in Itacaré, Bahia, obtained a preliminary injunction allowing it to apply a zero rate of Corporate Income Tax (IRPJ), Social Contribution on Net Profit (CSLL), PIS, and Cofins on food and beverage sales for five years. The tax benefit is provided for under the Emergency Program for the Resumption of the Events Sector (PERSE).

 PERSE was created by Law No. 14,148 of 2021 to compensate the events and tourism sectors for the financial impact caused by social distancing measures decreed due to the covid-19 pandemic. In addition to the zero rate on federal taxes, the program provides for the installment payment of tax and FGTS debts over 145 months, with up to a 70% discount.

 The crux of the matter is that, although hotel services are among the sectors benefited by the PERSE Law, it is common for a significant portion of hotel revenue not to come from lodging, but from the sale of food and beverages.

 In the State of São Paulo alone, according to the Brazilian Hotel Industry Association (ABIH), the hotel market hosts 142,000 guests daily. It generates, per year, more than R$ 7.4 billion in room revenue and R$ 1.5 billion in food and beverage revenue, not counting events.

 Bars and restaurants, however, must be registered in the Tourism Service Providers Registry (Cadastur) on the date the PERSE Law was published in order to use all the program’s benefits.

 This condition for bars and restaurants was imposed by the Ministry of Finance through Ordinance No. 7,163 of 2021. Because it does not appear in the statute, the restriction began to be challenged in court.

 According to Daniel Tanganelli Coelho, partner at Tanganelli e Chaves Advogados, who represents the hospitality company in the case, “lodging is temporary accommodation, but a large part of hotel revenue, on average from 25% to 40%, comes from the sale of food and beverages.” “Without Cadastur, the hotel would risk being fined,” the specialist adds.

 In the lawsuit, Daniel argued that the Cadastur Law itself defines hotel services as temporary accommodation “and other services offered to provide comfort to the guest”—which would include food and beverages.

 In granting the injunction, Judge Diego Câmara, of the 17th Federal Civil Court of the Federal District, ordered the Union “to observe the reduction of the PIS, Cofins, CSLL, and IRPJ rates in relation to activities of providing food and beverages exclusively to the plaintiff’s guests, in the exercise of general hotel activity, for the period defined in Article 4 of Law No. 14,148/2021.”

 According to Tanganelli, if the hotel’s food and beverage sales are also made to non-lodged visitors, that revenue will not be covered by PERSE. “But most of it is always for guests,” he says.

 For the hotel’s attorney, the preliminary relief (injunction) granted is a positive sign for the hotel sector. “When hotels are rated by stars, they take into account criteria such as the provision of food and beverages; therefore, there is investment in this,” he says.

 For ABIH Nacional’s legal advisor, Huilder Magno de Souza, “the decision is preliminary, but it represents a victory so that the entire hotel activity is benefited by PERSE, and not just the simple lodging activity.” According to Souza, the association views the decision favorably.

Read the full story at the link: https://valor.globo.com/legislacao/noticia/2023/07/28/hotel-obtem-direito-a-beneficio-fiscal-integral-do-perse.ghtml

Source: Valor Econômico

News Date: 07/28/2023

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