06/05/2013
Injunction ICMS calculation excludes pension Autor: Valor Econômico
An injunction granted by the Federal Court of Osasco, in Greater São Paulo, excluded the ISS and the ICMS calculation basis of employer pension contributions on the gross revenue of a technology company.
Since December 2011, the sector participates in the Greater Brazil Plan, established by the government, by Law No. 12,546, whose goal is to reduce taxes on the payroll of some sectors. From the standard, the industry began to pay pension contributions of 2% of gross revenue. Previously, the tax levied at 20% on the payroll. However, according to the Treasury after the enactment of the law, the industry would be subjected to a new calculation, which provides for the ISS, or ICMS in contribution calculation. With this, companies went to court to contest the change.
Lawyer Leonardo Mazzillo, the WFaria Advocacy, defending the company benefited from the injunction, claims that the Union would have given an interpretation of the new law unconstitutional when considering the concept of gross revenue would cover the value of the ICMS and ISS in case of services provided that does not fit into the replacement. That's because these taxes would not be covered by the concept of gross income, which is why they should be excluded from the calculation basis.
In the decision, the judge of the 2nd Federal Court of Osasco said there is pending trial in the Supreme Court (STF) on the constitutionality of the inclusion of ICMS in the PIS and COFINS, "whose fundamentals are applicable also to the ISS, as are taxes of the same nature under the jurisdiction of various entities. "
Despite the action analyzed treating the incidence of social security contributions on gross income, the magistrate considered it "perfectly reasonable" application of the concepts developed in the action pending in the Supreme Court. As the extraordinary appeal by the Supreme analyzed, most ministers have decided to exclude the ICMS calculation basis of PIS and COFINS, he was in favor of excluding taxes on pension contributions.
Furthermore, he adds that the Supreme Court, in ruling on the constitutionality of direct action n º 1-1, the Federal District, made reference to the concept of revenue, for the purpose of levy of social. And the definition adopted, the concept of sales or gross income does not imply "all revenue earned by the corporation." Thus, according to the magistrate, "the fact that the GST be added to the price of the goods does not detract from the character of tribute. Tribute And if it is not sales or revenue. Same understanding, according to the judge," can be applied to ISS ". therefore granted the injunction to suspend collection of the difference between the amount required by the IRS and the amount paid by the company.
For the lawyer of the Association of Business Data Processing of São Paulo (Seprosp), Alexander de France, the Godoi Aprigliano & Advogados Associados, an injunction is the first we have ever heard about this thesis and can serve as a precedent for other companies sector. The decision, however, binds its outcome to the judgment of the Supreme. He points out that, besides the extraordinary appeal cited by the judge in the decision, there is also the declaratory action of constitutionality (ADC) No. 18, filed by the Union with the intention of reversing this position in favor of taxpayers. Therefore, there is still a risk of action does not thrive.
The Seprosp, which brings together 45 000 members, however, have a different action that attempts to overthrow the entire recalculation established in Brazil Program Staff. The organization alleges in court that with the change promoted by the law establishing the program, small and medium enterprises with a low number of employees and high turnover began to pay double tax. So ask to collect tribute for the old way, in 20% of the payroll. The case, however, was judged in favor of the tax authorities and is pending further appeal.
Sought by value, the Attorney-General of the National Treasury (PGFN) did not return until the time of publishing.
Adriana Aguiar - De São Paulo
