CARF’s precedent on non-levy of the contribution to senar on export revenues

In a judgment carried out on August 8th, the 2nd Panel of the 4th Chamber of the 2nd Section of the Administrative Council of Tax Appeals (“CARF”) decided for the non-levy of the Contribution to the National Service of Rural Learning (“SENAR”) on export revenues of rural production. The decision was based on the understanding that the Contribution to SENAR is a general social contribution, and, for this reason, it could not be levied on export revenues, exempt according to art. 149, § 2, item I, of the Federal Constitution.

The precedent is an important change of position in favor of taxpayers since, until then, CARF adopted the understanding that the Contribution to SENAR would be a contribution of interest to a professional category and that, therefore, would not be included in the constitutional immunity.

The possibility of the understanding to prevail in the CARF gains strength to the extent that, according to our newsletter sent on June 1, the Federal Supreme Court (“STF”) decided in the judgment of the Extraordinary Appeal No. 816.830 (Topic 801 - General Repercussion) that the levy of the Contribution to SENAR on the gross revenue from rural production, in substitution of the payroll, is constitutional on the grounds that it has the legal nature of a general social contribution. Despite this conclusion, the STF did not rule on the levy of the Contribution to SENAR on export transactions. For this reason, a Motion for Clarification were filed, pending judgment.

In this scenario, we recommend rural producers and agroindustries to request the reimbursement of amounts unduly paid in the last 5 years, updated by SELIC.

We remain at your disposal to comment on the topic and the legal alternatives for compensation.

By Henrique Erbolato

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