A LGPD - General Personal Data Protection Act (Law No. 13,709, dated 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 processing of personal data, strengthening 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 revenue (limited to R$ 50,000,000.00);
3) Daily fine;
4) Publicization of the violation that is established and proven;
5) Blocking of personal data until compliance with the standard has been proven; and
6) Deletion of personal data.
According to market data, small and medium-sized companies cost R$ 50,000.00 to R$ 800,000.00, while large companies have an estimated cost of R$ 1,000,000.00 to R$ 5,000,000.00.
Assuming that the company's non-compliance with the guidelines of LGDP may result in administrative sanctions, and the favorable history - such as the DISIT/SRRF07 consultation solutions No. 7,081/2020 and COSIT No. 1/2021 and the 2018 Cosit Normative Opinion No. 5 - regarding the taking of PIS and COFINS credits by Legal Imposition, the thesis is being discussed that such costs, essential for the purpose of complying with the provisions of the LGDP, are subject to registration of PIS and Cofins credits, since they are imposed by the legislator, as cited in the judgment by the federal judge Pedro Pereira do Santos, of the 4th Federal Court of Campo Grande ( MS), when analyzing the writ of mandamus no. 5003440-04.2021.4.03.6000:
”Thus, it is the subtraction test that will reveal the necessity 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 the very least, causes a substantial loss of quality. In the case of the file, the author intends to consider as inputs the expenses necessary to fulfill the obligations related to the General Law on the Protection of Personal Data — LGPD (Law No. 13,709, of August 14, 2018). In the case of mandatory investments, even under penalty of applying sanctions to violators of the rules of the said Law 13,709/218, I believe that the corresponding costs must be classified as inputs, in accordance with the reasons mentioned above.
Indeed, the processing of personal data is not at the discretion of the merchant, and the respective costs must then be considered necessary, essential for the achievement of commercial objectives. In view of the foregoing, I grant the security to: (1) — determine that the contracting authority considers as inputs the expenses proven by the plaintiff in compliance with the rules of Law No. 13,709 of August 14, 2018, with the exception of the supervisory power of the Federal Revenue Service for accounting and documentary analysis and verification; (2) — recognize the plaintiff's right to compensate for any amounts overpaid, corrected by SELIC, with the debts under its responsibility, pursuant to art. 74 of Law No. 9,430/96, as long as it is transited in tried this sentence. I order the Treasury to reimburse the costs advanced by the plaintiffs. No remaining costs. No fees.”
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