STF decision – Third Party Social Contribution – SEBRAE, APEX E ABDI

On a judgement held last week, the Federal Supreme Court (“STF”) decided that social contributions to Sebrae, Apex and ABDI on the companies’ payroll are constitutional.

According to the taxpayers’ interpretation, the social contributions do not have Constitutional grounds to be charged after the Amendment nº 33/2001, which included item III in §2 of art. 149 of the Federal Constitution (“CF”), limiting the list of possible taxable bases to sales, gross revenue, transaction valeu and, in the case of imports, the customs value.

However, when deciding based on the Extraordinary Appeal No. 603624, STF understood that the list of tax calculation bases provided for in art. 149, paragraph 2, item III of the Constitution is not exhaustive, but rather exemplary.

Although there is still a remote possibility of change on that decision through a Petition for Clarification, this understanding directly impacts the discussion about the constitutionality of other third party social contributions, such as INCRA, “S Sistema” (SENAR, SENAI, SESC, SENAC, SENAT) and Education Allowance.

Nonetheless, the discussion about the limitation of the taxable basis for the calculation basis of third party social contributions to 20 minimum wages still remains, and has favorable precedents from the Superior Court of Justice (“STJ”).

In this regard, we reiterate our recommendation for filing a lawsuit to claim the refund of amounts unduly paid (difference between 20 minimum wages and the amount actually paid) in the last 5 years, updated by the SELIC interest rate.

We remain available for clarifications.

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