“The inclusion of the Tax on Services of Any Nature (ISS) in the calculation basis for the Social Security Contribution on Gross Revenue (CPRB) is constitutional.”
This was the thesis established by the Supreme Federal Court, by majority vote, defining that the ISS composes the calculation basis for the social security contribution (Topic 1,135 of general repercussion). The judgment was made in the Virtual Plenary, in a session that ended this Friday (18/6).
In the case analyzed, a company appealed a ruling by the Federal Regional Court of the 4th Region (TRF-4) which ruled that it was not possible for the taxpayer to exclude the ISS from the CPRB calculation basis established by Law 12,546/2011.
According to the company, the basis for calculating the contribution exceeds the economic limits set forth in the Federal Constitution. It also claims that the law provides for exceptions, but does not clearly define the scope of the event that generates the tax obligation, thus undermining the effectiveness of the taxable capacity, since it burdens unreal, merely presumed or fictitious income.
The majority of ministers followed the divergence opened by Alexandre de Moraes, who applied to the case an understanding analogous to another topic of general repercussion (RE 1,187,264, Theme 1,048), recognizing that another tax, the ICMS, is part of the CRPB calculation basis. According to the minister, it is only possible to decide the new question in the same way.
The central point of the issue was the change promoted by Law 12,973/2014, which began to define the concept of net revenue as the difference between gross revenue and, among other components, “taxes levied on them”.
“Therefore, according to current legislation, if net revenue includes gross revenue, minus, among others, applicable taxes, it means that, contrario sensu, gross revenue includes the taxes applicable to it”, argued Alexandre.
In addition to this analogous application, the minister also argued that, if he accepted the company's request in the RE, the Supreme Court “would be acting as a positive legislator, modifying the tax rules inherent to the substitute social security contribution established by Law 12,546/2011, which would also lead to a violation of the principle of separation of powers”.
No wealth
The rapporteur, Justice Marco Aurélio, was defeated, and his vote was supported by Justices Rosa Weber and Cármen Lúcia. He had proposed an opposing thesis: “The inclusion of the Tax on Services of Any Nature (ISSQN) in the calculation basis for the Social Security Contribution on Gross Revenue (CPRB) is incompatible with the Federal Constitution.”
Marco Aurélio, who was also defeated in the ICMS trial, defended the same arguments presented at the time. For him, “there is only potential to contribute when the magnitude provided for in the rule involves real economic content. The simple entry and accounting record of the amount does not transform it into revenue”.
RE 1,285,845
Source: https://www.conjur.com.br/2021-jun-20/iss-integra-contribuicao-previdenciaria-receita-bruta-stf