The possibility of taking credits of PIS and COFINS — the federal Social Integration Program Contribution (PIS) and Social Security Financing Contribution (COFINS) — on the Urban Property Tax (IPTU) and the condominium fees paid by the tenant, in respect of properties used in the business, is a controversy of significant impact for companies with extensive store networks. In our view, there are solid grounds for recognizing such a credit, even though the matter is not yet settled.
The debate gained a new chapter in two recent decisions of the Federal Administrative Tax Court (Conselho Administrativo de Recursos Fiscais — CARF), reaching opposite conclusions and involving large retailers. In the Americanas case (ruling No. 3101-004.322, session of December 9, 2025), the disallowance was reversed unanimously; in the Lojas Riachuelo case (ruling No. 3202-003.620, session of April 13, 2026), it was upheld — by a casting vote (voto de qualidade). The controversy, the grounds in favor of the credit, and the current state of the case law are examined below.
What is the controversy?
Article 3, item IV, of
Law No. 10,637/2002 and
Law No. 10,833/2003 authorizes a PIS and COFINS credit on the rent of buildings used in the company’s activities. CARF Precedent Summary No. 234 (Súmula CARF nº 234), in turn, disallows credits on inputs in commercial (retail) activity. The decisive question is one of classification: do the IPTU and the condominium fees paid by the tenant form part of the creditable “rent,” or are they standalone expenses, outside the scope of the credit? And, before that: is the discussion about inputs even relevant?
Why IPTU and condominium fees form part of the cost of the lease
In our view, the more consistent interpretation is the one that recognizes the credit. Where they are allocated to the tenant by contract, the IPTU and the condominium fees are not expenses parallel to the rent: they are
occupancy costs of the property — charges that the tenant assumes as consideration for the right to use the leased asset, alongside the rent in the strict sense. They therefore form part of the total cost of the lease.
There is a significant point reinforcing this classification: the tenant is not the taxpayer of the IPTU. The tax liability falls on the owner of the property, and the tenant bears the amount only by force of the contract. For the tenant, therefore, the IPTU is not a tax of its own, but a component of the cost of the lease — which removes the objection that it would be a non-creditable tax. For the same reason, the correct classification is that of Article 3, item IV (rent), and not that of an input. It follows that CARF Precedent Summary No. 234, limited to credits on inputs in commercial activity, is no obstacle; and, being an internal rule, it cannot restrict what the law expressly authorizes.
This was precisely the approach taken in the Americanas case, in which the panel held that
“IPTU, condominium fees, and other contractually established expenses form part of the cost of the lease” and unanimously reversed the disallowances relating to IPTU, electricity, and condominium fees, on the basis of Article 3, item IV.
What is the prevailing position?
It must be noted, however, with full transparency, that this is not yet the prevailing position. At the Superior Court of Justice (Superior Tribunal de Justiça — STJ), there is no specific binding thesis on whether the IPTU and the condominium fees form part of the rent for credit purposes. The applicable repetitive-appeal precedent is that of Themes No. 779 and 780 (REsp 1,221,170/PR, 2018), which established the concept of input by the criteria of essentiality and relevance — and which has been invoked precisely by the restrictive line of reasoning to deny the credit on the input basis.
In administrative litigation (notably before the Superior Chamber of the CARF — Câmara Superior de Recursos Fiscais — CSRF) and in the case law of the Federal Regional Courts (Tribunais Regionais Federais — TRFs), the prevailing view has been that the IPTU and the condominium fees are standalone items that do not form part of the rent — as in the approach taken in the Lojas Riachuelo case, under which such charges
“constitute expenses that are distinct from and independent of the expenses for the rental of buildings.” The split, however, is narrow: in that judgment, the disallowance was upheld only by a casting vote, with the reporting counselor and two other panel members outvoted, all of whom would have ruled for the taxpayer.
What does this mean for companies?
For retail, franchises, supermarkets, and chains with many stores and thin margins, the credit on recurring IPTU and condominium fees may represent a real cash-flow difference. Because the favorable view is still in the minority, however, the assessment must be careful. The following points are worth noting:
- lease agreements that expressly allocate the IPTU and condominium charges to the tenant strengthen the classification of these amounts as a cost of the lease;
- classification as a cost of the lease (Article 3, item IV) is more solid than the attempt to classify the expenses as an input, which is barred by CARF Precedent Summary No. 234;
- given the position still prevailing to the contrary, the administrative route is uncertain, and judicial relief — including anticipatory relief — may be the safer path to secure the credit;
- each company should assess, on a case-by-case basis, the relationship between the crediting opportunity and the risk of disallowance or of reversal before a higher instance.
In sum, in our view the IPTU and the condominium fees assumed by the tenant form part of the cost of the lease and authorize the PIS and COFINS credit under Article 3, item IV; we recognize, however, that the argument still faces majority resistance, which calls for sound contractual documentation and a well-defined strategy.
We remain available to discuss the legally available paths in relation to this matter. 