Outside Cide Remittances
Cide on remittances abroad - unconstitutionality
THE "Cide-Remittances”, created by Law No. 10.168/2000, was intended to finance the Program to Stimulate University-Industry Interaction to Support Innovation, through the National Fund for Scientific and Technological Development – FNDCT.
At its origin, the Cide-Remittances aimed at generating resources for the development of Brazilian industry from remittances involving technology contracts. Thus, as Marco Aurelio Greco well warns, “cannot focus on contracts that have other objects, such as the license to use software1“.
Modification introduced by Law No. 10,332/2001, changed the incidence hypotheses, establishing that the contribution would reach all payments, made by legal entities residing in Brazil, through remittances to beneficiaries abroad, by way of contracting technical services, administrative assistance and the like, as well as “royalties in any capacity”, becoming required even in shipments in payment of copyright!
This legislative change contaminated remittances resulting from the commercialization of software of external origin, giving rise to an infinity of tax conflicts (part of which, even today, await court decision) involving payments of software use license and software distribution/marketing rights
Important legislative change was implemented in 2007 under the leadership of ABES11,452/07, which introduced in the second article of the law, a new paragraph determining that:
- 1O-THE. The contribution addressed in this article does not affect on remuneration for use license or rights of commercialization or distribution in computer program, unless they involve the transfer of the corresponding technology.
Despite the legal provision expressly excluding the levy of CIDE on remittances in payment of rights to commercialize or distribute computer programs, several administrative and judicial courts – such as the Precedent No. 127 of Carf - admit the incidence of Cide “in contracting technical services provided by residents or domiciled abroad” even if it doesn't exist "technology transfer“.
In this sense, it is important to remember that in a judgment published in DJe 10/23/2017, the 2nd Panel of the Superior Court of Justice - STJ, when considering REsp nº 1.642.249/SP (Rapporteur Minister Campbell Marques), decided that the Remittances apply to cases of technology supply, even if there is no access to the source code, that is, without the “technology absorption”.
In the software market, another even greater concern arises with the theme due to the transformation resulting from the “cloud computing". This type of service provision comprises the delivery of various IT resources via the Internet. Instead of buying, owning and maintaining physical data centers and servers, the user accesses technology services such as computing power, storage and databases, using a cloud provider like AWS (Amazon), azure (Microsoft), Cloud Platform (Google) or IBM Cloud (IBM), among others, which provide secure cloud infrastructure and are responsible for protection against attacks, guarantee of availability, integrity and confidentiality. In short, the services cloud computing involve a “complex delivery”, which go beyond the barrier of traditional “use licensing”.
Given the complexity of this type of service, there is a well-founded fear sector of which the RFB – Federal Revenue of Brazil passes to narrowly interpret the reach of no incidence gives CIDE-Remittances in relation to payments abroad of remuneration inherent to marketing/distribution rights involving cloud computing services.
Therefore, in a recent article2 the consecrated tax expert Heleno Taveira Torres, expresses himself on the subject as follows:
“It is expected that the general repercussion of RE nº 928.942/SP (Theme 914) which is on trial at the STF put an end to Cide's latent unconstitutionality on remittances abroad, provided for in Law No. 10,168/2000, which since the amendment by Law No. 10,332/2001, on the pretext of stimulating Brazilian innovation and technological development, had its material scope of incidence expanded to reach remittances abroad by any means contract involving technical expertise, even if they do not understand technology transfer.”
In conclusion, the STF has the opportunity to declare the unconstitutionality of Cide-Remessas on operations with software, an achievement that would bring high legal certainty to ABES Associates. The project “OUT CIDE-SHIPMENTS” proposes to give its share of collaboration so that this result is achieved.
Does your company want to participate in this project?
The answer must be sent by the 22nd of September.
By choosing the "YES" option, your company will be adhering to the project, authorizing the issuance and sending of the ticket and committing to make the payment related to the value of the financial contribution, in freely defined value by your company.
To obtain additional guidance on this matter or are interested in joining the Fora Cide-remessas Project, ABES members may consult the Legal Department by phone or email during legal duty hours:
Every working day from 9:30 am to 12:30 pm.
Mondays, Wednesdays and Fridays from 2:30 pm to 5:30 pm (working days)
Telephone: (11) 5094 3100 of the Member Service Center
 GRECO, Marcus Aurelius. In search of control over CIDE's. In: MOREIRA, André Mendes, RABELO FILHO, Antônio Reinaldo; CORREIA, Armênio Lopes (Org.). Telecommunications Law and Taxation. São Paulo: Latin Quarter, 2006, p. 328-329. In CONJUR, Ed 05/11/2022,
 “Cide on remittances abroad must be declared unconstitutional", by Heleno Taveira Torres,