A LGPD - General Personal Data Protection Law (Law No. 13.709, of 14/8/2018) establishes guidelines for the form of collection, processing and storage of personal data and aims to guarantee the right to privacy and protection of personal data, establish rules on the treatment of personal data, strengthen data security and greater reliability in economic relations.
Failure to comply with LGPD will result in the following administrative sanctions:
1) Warning;
2) Fine of up to 2% of billing (limited to BRL 50.000.000,00);
3) Daily fine;
4) Publication of the infraction that is verified and proven;
5) Blocking of personal data until the regularization to the standard is proven; and
6) Deletion of personal data.
According to market data, small and medium-sized companies have costs from R$50.000,00 to R$800.000,00, while large companies have costs in an estimated range of R$1.000.000,00 to R$5.000.000,00 .XNUMX.
Assuming that the company's non-compliance with the guidelines of the GDPR may generate administrative sanctions, and the favorable history - such as the consultation solutions DISIT/SRRF07 nº 7.081/2020 and COSIT nº 1/2021 and the Normative Opinion Cosit nº 5, of 2018 - on the taking of credits from PIS and the COFINS by Legal Imposition, the thesis is being discussed that such costs, essential for the purposes of adapting to the dictates of the LGDP, are subject to registration of PIS and Cofins credits, since they are imposed by the legislator, as mentioned in the sentence by Federal Judge Pedro Pereira do Santos, of the 4th Federal Court of Campo Grande (MS), when analyzing Writ of Mandamus No. 5003440-04.2021.4.03.6000:
"Thus, it is the subtraction test that will reveal the indispensability and importance of the good in the production process, and there is only talk of characterization as an input when the subtraction of the good or service in question results in the impossibility of carrying out the business activity or, at least, cause you a substantial loss of quality. In the case of the case file, the plaintiff intends to consider as inputs the expenses necessary to fulfill the obligations related to the General Law for the Protection of Personal Data - LGPD (Law No. 13.709, of August 14, 2018). In the case of mandatory investments, including under penalty of application of sanctions to the violator of the norms of the aforementioned Law 13.709/218, I believe that the corresponding costs must be classified as inputs, under the terms of the from above mentioned.
In fact, the processing of personal data is not at the discretion of the trader, and the respective costs must therefore be considered necessary, essential to the achievement of commercial objectives. In view of the foregoing, I grant the security to: (1) - determine that the coercive authority considers as inputs the expenses proven by the petitioner with the compliance with the rules of Law No. from the Internal Revenue Service for accounting and document analysis and checking; (13.709) – recognize the petitioner's right to offset any amounts overpaid, corrected by SELIC, with the debts under its responsibility, pursuant to art. 14 of Law No. 2018/2, provided that this sentence becomes final. I condemn the Treasury to reimburse the costs advanced by the petitioners. No remaining costs. No fees”.
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