May 23rd, 2018

Legislative Newsletter - Edition 091

Coworking: regulating to enhance

Coworking companies fulfill nowadays the role to shelter professionals that seek to develop new products or offer eligible services.

Legislative Newsletter - Edition 091

The progress of informatics in the economy made the productive sector to use more and more the computers and alike, including creating new jobs with liberal features by its productive autonomy. The technology evolution allowed such tools to become portable, which allowed a bigger flexibility in the working environment, which is even more virtual. These two ingredients, more autonomy and flexibility about production localization, have generated a demand to a new kind of working place: the so-called Coworking, Business Center or Virtual Office, to what the first denomination is more better known in Brazil.

Such locations are created to support professionals who would not have the condition to implement a place to work by itself, but that together can generate the necessary scale to provide the services that help people and companies on their business in different locations not only nationally but also around the world.

Those startups companies initiated in garages, and which became big corporations nowadays, show us that the new industrial revolution has found in innovation and in creativity its new core for productivity. The Coworking companies fulfill nowadays the role to shelter professionals that seek to develop new products or offer eligible services, which find in shared costs the chance to be built up. Such reduced costs may represent the difference between success and failure to ideas with the potential to become great companies in a near future and to insert the country in the context of the new digital economy.

The Brazilian Congress has been debating the subject through the Bill PL 8300/2017 delivered by Representative Marco Tebaldi (PSDB/SC). The Bill was appointed to 3 Committees: (i) The Economic, Industrial, Commerce and Services development committee; (ii) Finances and taxation (due to its merit and according to Art. 54, RICD); and (iii) Constitution, Justice and Citizenship. The Bill has been approved in form of a substitutive in the first committee, where it was reported by the representative Vinicius Carvalho (PRB/SP). The approval in the form of substitutive represents that the original text was approved with alterations, whether in formal or substantive aspects.

The Finance Committee received the Bill in last May 17th and a rapporteur will be thus indicated to report the Bill. Once they are indicated for the discussion calendar, then the representatives will have a time limit of 5 legislative sessions to present amendments and, in case a new substitutive should be presented, a new data limit will be initiated to present other amendments to the delivered substitutive. When approved in the Finance Committee, the draft will be sent to the CCJ, where the Bill will be discussed in relation to its constitutionality and legality. This scenario indicates that the subject can still be discussed by the society and the market sectors affected by this discussion.

According to the draft, Coworking Business Center and Virtual Offices are those who host multiple companies and that have been registered with CNAE number 8211 or in that case when their address serves to other companies before official bodies in addition to other administrative support services, aside from providing physical structure to companies’ activities that searches for a Coworking. Companies using a location with no administrative support given to a third person are excluded from the regulation.

The measure establishes obligation to Coworking companies (Art. 4º), to users (Art. 6º), aside from giving exclusivity to Coworking companies to host multiple companies in a unique location (Art. 7º); it separates the user’s responsibility from those attributed to Coworking companies (Art 8º) and it excludes the use of sublease as instrument to operationalize of the activity (Art. 9º). The Bill still foresees that other restrictions to users may be able to be established by a specific law or regulation (Art. 10). Moreover, the draft foresees that in case of user changing its address, the same activities that the user was authorized in the previous address shall remain the same (Art. 13), what could lead users to restart bureaucratic procedures in public offices, even though such changes would be motivated by the introduction of new activities or even when the entrepreneur chooses a new challenged for the business.

In relation to how tax is applied there is also a significant difference. Up to this moment, the Coworking companies issues two types of billings: one related to the location sublease, to which IR, CSLL, PIS and CONFINS taxes are applied, and one related to the use of the optional services, which are used in the “pay-per-use” system and to which Tax over Services (ISS) is applied. Since the Bill forbids the use of sublease as instrument to operationalize Coworkings, classifying them only as a service can lead to an enlargement of ISS applied on the amount charged to the user, what may increase the user’s cost. As costs are a very sensitive element to whom is in search of a Coworking to develop a business, the tax effects proposed in the Bill should be deeply analyzed in order to not let such regulation, since it aims at offering a better legal framework for this market sector, end up limiting innovation at its initial and more sensitive stage. Remembering that startup companies may have a large potential to support our economy generating more jobs and income, especially at a moment of economic recovery as we live now.