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Undue collection of social security contributions

Atualizado: 17 de Mai de 2019

The Law No 13,161/2015 made changes to the Law 12,546/2011, resulting, in this specific case, an increase in the social security contribution rate from 2% (two percent) to 4, 5% (four-point five percent).


The tax in question, in the infra-constitutional scope, was originally created by Law No. 8,212 / 1991, which in item I of Article 22 provided that:


Article 22. The contribution to be borne by the company, destined to Social Security, in addition to the provisions in art. 23, is:

I - twenty percent of the total remuneration paid, due or credited in any way during the month to insured employees and independent workers ("avulsos" in Portuguese) who render services to remunerate work in any form, including gratuities, the usual gains in the form of profits and the advances resulting from salary readjustment, either for the services actually provided or for the time available to the employer or service provider, under the terms of the law, the contract or also under the terms of agreement, collective work agreement or normative judgment. (As determined by Law No. 9.876, of 1999). (See Law No. 13,189, of 2015).

Observing the later article, it is possible to extract the objective, subjective, spatial and temporal elements of the event that generates the tax in the analysis.


The objective element, which refers to "the abstract description of an act or fact from which the tax liability arises," is notable when the rule states that the employer-taxpayer for Social Security funding derives from the payment of the remuneration due to the worker


In turn, the subjective aspect deals with the subjects of the legal relationship regulated by normative data, which in the case in question will be an employer (taxpayer) and the Federal Government (active subject).


Regarding the quantitative element of the tax, which is outlined by the normative forecast of the basis of calculation and the rate on it, Law No. 8,212/1991 established it at the rate of 20% on "wages paid, due or credited to any title" to the insured or to an independent worker.


Regarding the spatial aspect, given that the active subject of the legal relationship is the Federal Government, it is assumed that the materialization of the generating event outlined in Law no. 8,212/1991, in any part of the national territory, in theory, will trigger the corresponding tax obligation.


Finally, the temporal element, to the content of what is prescribed in Article 116 of the National Tax Code (CTN), will determine the Law to focus on the concrete case, giving effect to the principle of "tempus regit actum". That is, "it is from the occurrence of the generating event that their effects are considered to exist", which, "in casu", occurs when payment of the remuneration due to the worker.


Note the provisions of Article 116 of Law 5,172, dated October 25, 1966 (National Tax Code):


Art. 116. Except as otherwise provided by law, the taxable event shall be deemed to have occurred and its effects exist:


I - in the case of a de facto situation, from the moment when the necessary material circumstances occur to produce the effects that are normally his own;


II - in the case of a legal situation, as soon as it is definitively constituted, in accordance with the applicable law.


Note: However, the Federal Attorneys' Offices and the "Advocacia Geral da União" (AGU) point out that not all of these guiding elements of the taxable event are clearly established in Law 12,546/2011, as was verified in relation to Law No. 8,212/1991.


To better detail the legal uncertainty to be raised, it is convenient to transcribe part of the text of Law 12,564/2011:


Art. 7. They may contribute on the value of gross revenue, excluding canceled sales and unconditional discounts granted, replacing the contributions provided for in items I and III of the caput of art. 22 of Law No. 8,212, of July 24, 1991: (As determined by Law No. 13,161, of 2015)


I - the companies that provide the services referred to in §§ 4 and 5 of art. 14 of Law 11,774 of September 17, 2008; (Included by Law No. 12,715, of 2012).

Art. 7º-A. The tax rate on the gross revenue provided for in art. 7 will be 4.5% (four and five-tenths percent), except for the call center companies referred to in item I, which will contribute to the rate of 3% (three percent), and to the companies identified in items III , V and VI, all of caput of art. 7, which will contribute to the rate of 2% (two percent). (Drafting gave by Law 13202, of 2015).


At the outset, it neglects any discussion regarding the subjective, quantitative, and special elements of the generating fact regarding the obligation arising from the law in question.


That is because the subjects of the relationship remain the same (subjective element). The rule in question has application throughout the national territory, such as Law No. 8,212/1991 (spatial element). And the basis of calculation, which is the gross sales, as well as the tax rate on it, which is 4.5%, are clearly defined (quantitative elements).


However, in principle, the same could not be said about the objective and temporal elements, since it does not seem obvious to us what the fact that when it occurs generates the tax obligation (objective element). Consequently, we must verify that the occurrence of the generating event (temporal aspect) that triggers effects on the values ​​of the adjusted contracts deserve more analysis.


Thus, to clarify the issue, legal guidance is required in order to inform if the event generating the tax obligation related to the provisions of Law 12,546/2011 is the moment of delivery of the services or the instant they are billed by the company (invoice issuance), regardless of when it has been executed in the latter case.


It should be emphasized that the relevance of the clarification in question stems from the fact that, by defining as a triggering event the billing moment, the repercussion of the financial effects of the review to be carried out will not occur in the portion of January 2016 that was billed. But, instead of in December's 2015 billing.

Attention 1: Most national bodies understand that the tax generating event is the moment of execution of the services, the financial effects of the revision will be given as of January 2015, but not focusing on the total demands that make up its value, since not all were actually executed in December. Meanwhile, the Federal Attorneys' Offices and the Federal Attorney General's Office (AGU) request the collection in order to increase the collection of Administration.

Attention 2: The collection based on art. 15 and 16 of Law 13,202, dated December 8, 2015, violated the Principle of Annual Anteriority, "Anterioridade Anual" in Portuguese, (Art. 150, III, "b" of the Federal Constitution) and the Principle of Nonagesimal Anteriority, "Anterioridade Nonagesimal" in Portuguese, (Art. 150, III, "c" of the Federal Constitution) the tax in spotlight does not represent exceptions to the Principle of Annual Anteriority (Art 150, §1, initial part of the Federal Constitution) and to the Principle of Nonagesimal Anteriority (Art. 150, §1, of the Federal Constitution).

In addition, the amount can only be charged as of March 7, 2016.

Business activities affected:


1) Informatics: Article 7, I, of Law 12,546, of December 14, 2011: I - the companies that provide the services referred to in paragraphs 4 and 5 of art. 14 of Law No. 11,774, of September 17, 2008;   


I - analysis and development of systems;

II - programming;

III - processing of data and the like;

IV - elaboration of computer programs, including electronic games;

V - licensing or assignment of right of use of computer programs;

VI - computer consulting and consultancy;


2) Hotels: Art. 7º, II, of Law no. 12,546, of December 14, 2011: II - hotels in the hotel sector classified in subclass 5510-8 / 01 of the National Classification of Economic Activities - CNAE 2.0;


5510-8 / 01

HOTEL ADMINISTRATION

5510-8 / 01

HOTEL

5510-8 / 01

HOTEL WITH OR WITHOUT RESTAURANT SERVICE

5510-8 / 01

FARM HOTEL

5510-8 / 01

HOS

5510-8 / 01

LODGING WITH OR WITHOUT FOOD SERVICE

5510-8 / 01

SPA WITH ACCOMMODATION SERVICES; SERVICES OF


3) Collective road passenger transport companies: Art. 7º, III, of Law 12,546, of December 14, 2011: III - companies of collective road passenger transportation, with fixed, municipal, intermunicipal, inter-municipal, inter-state and international classification in classes 4921-3 and 4922-1 of CNAE 2.0.


4921-3 / 01

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, URBAN MUNICIPAL

4921-3 / 01

BUS; ROAD TRANSPORTATION OF PASSENGERS, REGULAR, URBAN MUNICIPAL

4921-3 / 02

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERMUNICIPAL METROPOLITANO

4921-3 / 02

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTRAMUNICIPAL, NON-METROPOLITAN

4921-3 / 02

BUS; ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTRAMUNICIPAL, NON-METROPOLITAN

4922-1 / 01

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERMUNICIPAL NON-URBAN

4922-1 / 01

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERMUNICIPAL, NON-METROPOLITAN

4922-1 / 01

BUS; ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERMUNICIPAL, NON-METROPOLITAN

4922-1 / 02

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERESTADUAL

4922-1 / 02

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, NON-URBAN INTEREST

4922-1 / 02

BUS; ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERESTADUAL

4922-1 / 03

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERNATIONAL

4922-1 / 03

ROAD TRANSPORTATION OF PASSENGERS, REGULAR, NON-URBAN INTERNATIONAL

4922-1 / 03

BUS; ROAD TRANSPORTATION OF PASSENGERS, REGULAR, INTERNATIONAL

4) Art. 7, IV, of Law 12,546, of December 14, 2011: IV - companies in the civil construction sector, classified in groups 412, 432, 433 and 439 of CNAE 2.0;

4120-4 / 00

APARTMENTS, HOUSES, HOUSING SETS, BUILDINGS, BUILDINGS, BUILDINGS, CONDOMINIUMS, RESIDENCES, ETC., CONSTRUCTION OF

4120-4 / 00

APARTMENTS, HOUSES, HOUSING SETS, BUILDINGS, BUILDINGS, BUILDINGS, CONDOMINIUMS, RESIDENCES, ETC., REFORM OF (GENERAL BUILDER)

4120-4 / 00

APARTMENTS, HOUSES, HOUSING SETS, BUILDINGS, BUILDINGS, BUILDINGS, CONDOMINIUMS, RESIDENCES, ETC., REFORMS IN

4120-4 / 00

WAREHOUSES, SILOS, DEPOSITS AND ETC .; CONSTRUCTION OR REFORM OF

4120-4 / 00

CABINS (CONTAINERS) FOR RESIDENTIAL, COMMERCIAL OR INDUSTRIAL USE; CONSTRUCTION OF

4120-4 / 00

CONCRETE AND PVC SANITARY CABINS; CONSTRUCTION OF

4120-4 / 00

GUARDHOUSE; CONSTRUCTION OR REFORM OF

4120-4 / 00

PREFABRICATED HOUSES, HOUSING KITS, ETC .; ASSEMBLY OF (WHEN EXECUTED BY SPECIALIZED UNIT)

4120-4 / 00

HOUSES, RESIDENCES, HOUSES, APARTMENTS, ETC. DEVELOPMENT, CONSTRUCTION OR REFORM OF

4120-4 / 00

SHOPPING CENTERS, SHOPPING COMMERCIAL, ETC .; CONSTRUCTION OR REFORM OF

4120-4 / 00

CINEMAS, THEATERS, CLUBS, CIRCUS, SPECTACLES ROOMS, FUN PARKS, ETC .; CONSTRUCTION OR REFORM OF

4120-4 / 00

CLINICS, HOSPITALS; CONSTRUCTION OR REFORM OF

4120-4 / 00

RESIDENTIAL CONSTRUCTORS

4120-4 / 00

CONSULTING AND MEDICAL CLINICS, CONSTRUCTION OR REFORM OF

4120-4 / 00

NON RESIDENTIAL BUILDINGS: OFFICES, STORES, INDUSTRIAL PLANTS, GOVERNMENTAL BUILDINGS AND ETC., REFORM WORKS IN

4120-4 / 00

BUILDINGS FOR CULTURAL OR RECREATIONAL PURPOSES, CONSTRUCTION OF

4120-4 / 00

PREFABRICATED BUILDINGS, WHEN EXECUTED BY A SPECIALIZED UNIT, ASSEMBLING

4120-4 / 00

PREFABRICATED BUILDINGS, ASSEMBLY OF (WHEN EXECUTED BY SPECIALIZED UNIT)

4120-4 / 00

RESIDENTIAL BUILDINGS, CONSTRUCTION (CONSTRUCTION) AND REFORM IN

4120-4 / 00

COMMERCIAL BUILDINGS, CONSTRUCTION OR REFORM OF

4120-4 / 00

BUILDINGS OF APARTMENTS, CONSTRUCTION OF

4120-4 / 00

BUILDINGS GARAGE AND UNDERGROUND GARAGES, CONSTRUCTION OR REFORM OF

4120-4 / 00

PRE-MOLDED OR PREFABRICATED BUILDINGS OF ANY MATERIAL OF PERMANENT OR TEMPORARY NATURE WHEN EXECUTED BY SPECIALIZED UNIT, MOUNTING OF

4120-4 / 00

MULTI-FAMILY RESIDENTIAL BUILDINGS, INCLUDING SKYSCRAPERS, CONSTRUCTION OR REFORM OF

4120-4 / 00

SCHOOLS, COLLEGES, UNIVERSITIES, SCHOOLS, KINDERGARTEN, AND OTHER BUILDINGS INTENDED FOR EDUCATION, CONSTRUCTION OR REFORM OF

4120-4 / 00

COMMERCIAL OFFICES, CONSTRUCTION OR REFORM OF

4120-4 / 00

PASSENGER STATIONS FOR TRAINS, TRAM AND METROPOLITAN (SUBWAY), CONSTRUCTION OR REFORM OF

4120-4 / 00

STABLES AND OTHER BUILDINGS INTENDED FOR AGRICULTURAL USE, CONSTRUCTION OR REFORM OF

4120-4 / 00

SPORTS STAGES, COVERED SQUARES, GYM ACADEMIES, ETC. CONSTRUCTION OR REFORM OF

4120-4 / 00

STRENGTHS AND STRENGTHS, CONSTRUCTION OR REFORM OF

4120-4 / 00

FACTORIES, OFFICES, GALPHONES AND OTHER TYPES OF BUILDING FOR INDUSTRIAL PURPOSES, CONSTRUCTION OR REFORM OF

4120-4 / 00

GALPHONES, ASSEMBLY OF (WHEN PERFORMED BY SPECIALIZED UNIT)

4120-4 / 00

SECURITY CABIN, CONSTRUCTION OF

4120-4 / 00

HANGARS, CONSTRUCTION OF

4120-4 / 00

HOSPITALS, HEALTH CARE, ASYLUM, HOMES, SPAS, ORPHANAGES, CONSTRUCTION OR REFORM OF

4120-4 / 00

HOTELS, BEDROOMS, BEDROOMS, PENSIONS, HOSPITALS, HOMES, SPAS, ASYLUM AND OTHER TYPES OF ACCOMMODATIONS AND HOUSES, CONSTRUCTION AND/OR REFORM OF

4120-4 / 00

CHURCHES, TEMPLES AND SIMILAR, SYNAGOGUES, MOSQUES, CATHEDRAL AND OTHER TYPES OF CONSTRUCTIONS FOR RELIGIOUS PURPOSES, CONSTRUCTION AND/OR REFORM OF

4120-4 / 00

PROPERTIES; REFORM OF

4120-4 / 00

INDUSTRIAL FACILITIES, BUILDINGS

4120-4 / 00

INSTALLATIONS FOR PASSENGER BOARDING AND LANDING (AIRPORTS, ROADS, PORTS, ETC.), CONSTRUCTION OR REFORM OF

4120-4 / 00

SHOPS, GALLERIES, SHOPPING CENTERS AND SHOPPING CENTERS CONSTRUCTION OF

4120-4 / 00

PALATES, CASTLES, PALACES, MANSIONS, SOLARS, ETC., CONSTRUCTION OR REFORM OF

4120-4 / 00

PLANTS OF INCINERATION, CONSTRUCTION OF

4120-4 / 00

POSTS OF FUEL (GASOLINE), CONSTRUCTION OR REFORM OF

4120-4 / 00

PRISONS, PRISONS, DELEGATIONS, BATTLESHIPS, STRENGTHS, FORTRESS, CONSTRUCTION OF

4120-4 / 00

COMMERCIAL BUILDINGS, CONSTRUCTION OF

4120-4 / 00

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