Recovery of Contributions Destined to Third Parties

There is currently a legal thesis under discussion before the courts involving contributions destined to third parties (SENAI, SESI, SENAC, SESC, SEBRAE, SENAR, SEST, SENAT, SESCOOP, INCRA, Education Salary and others), with the exception of contributions destined to the Education Salary.

Taxpayers’ opposition to this taxation is not new, as its constitutionality had long been challenged. Once the Federal Supreme Court (STF) ruled on its constitutionality, a new debate has now arisen concerning its calculation basis.

The new thesis contests the incidence of the percentage, which varies according to the company’s activity and may reach a maximum of 5.8%, not on the total payroll, but limited to 20 minimum wages.

This thesis applies to companies taxed under the actual profit (lucro real) or deemed profit (lucro presumido) regimes, thereby excluding companies taxed under the Simples (Simples Nacional) regime, which calculate social contributions in a different manner.

Social contributions and contributions for intervention in the economic domain are constitutionally grounded in Article 149, with the exception of social security contributions, which are provided for in Article 195.

Social contributions destined to third parties were challenged by taxpayers seeking a declaration of their unconstitutionality following the enactment of Constitutional Amendment No. 33 of December 11, 2001, which gave the following wording to item III of § 2 of Article 149 of the Federal Constitution:

“(...) § 2 The social contributions and contributions for intervention in the economic domain referred to in the caput of this article: (Included by Constitutional Amendment No. 33, of 2001)

II – shall also be levied on the import of foreign products or services; (Wording given by Constitutional Amendment No. 42, of 12.19.2003)

III – may have rates: (Included by Constitutional Amendment No. 33, of 2001)

a) ad valorem, based on turnover, gross revenue or the value of the transaction and, in the case of imports, the customs value; (Included by Constitutional Amendment No. 33, of 2001)

b) specific, based on the adopted unit of measure. (Included by Constitutional Amendment No. 33, of 2001) ...”

(emphasis added)

What is observed is that payroll is not listed as a calculation basis for the incidence of this contribution.

Despite the constitutional wording, in Extraordinary Appeal (RE) No. 603.624 the STF ruled that such contributions are constitutional, noting that in that case only contributions destined to SEBRAE, Apex and ABDI were under discussion.

In RE No. 630.698, with Justice Dias Toffoli as Reporting Justice, the decision was in the same sense, that is, the Court held that contributions destined to third parties are constitutional, on the understanding that the list of possible bases of incidence is merely illustrative and, therefore, nothing prevents payroll from being included among the hypotheses of incidence. In that case, the contribution destined to INCRA was at issue.

Once the debate over the unconstitutionality of social contributions destined to third parties has been overcome, another discussion arises, now opposing the calculation basis of said contributions. Broadly speaking, the dispute centers on whether the calculation basis of these contributions should be subject to a cap of twenty (20) minimum wages.

This thesis has been well received by our courts, and its recognition in a specific case may represent significant tax savings for companies.

Thus, it is possible to file a writ of mandamus (mandado de segurança), with a request for injunctive relief, so that the company’s clear legal right to contribute on the basis of 20 minimum wages, and not on the entire payroll, is recognized, with judicial deposit of the disputed amount until the final and unappealable decision, thereby ensuring “zero risk” for the company.

Once the right is recognized, the company may withdraw the deposited amount and offset, on a cross-basis – that is, against any tax, under the terms of Law No. 9,430/96 – the amounts overpaid during the five-year period preceding the filing of the lawsuit.