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EMPLOYER'S SOCIAL SECURITY CONTRIBUTION CHARGED TO THE SOLE PROPRIETORSHIP / 26 Abr 2016

The Sole Proprietorship (MEI) is a legal form of company consisted of a sole (natural) holder who performs a business activity under his own name. The wealth and assets of the individual and the Sole Proprietorship are the same; therefore the holder shall respond personally and limitlessly for company’s debts. It’s important to highlight that the Sole Proprietorship can obtain several benefits if registering as a Sole Micro Entrepreneur.

To open, register and legalize as Sole Proprietorship it’s necessary to register within the Board of Trade, and based on the nature of the business’ activities it is also required to register within other agencies such as the Internal Revenue Service (CNPJ), Secretary of State Treasury (state registration and ICMS) and the Municipality (granting the Business License and authorization from agencies responsible for health, public safety, environment and others, depending on the nature of the activity).

The creation of the MEI will meet with the aspirations of Brazilian society, in order to remove the informality million people who until then were in the informal sector, so detrimental to the economic development of our country.

To this end, the adoption of a model that simplify the business obligations, including and especially the tax was necessary, otherwise the project hardly reach the success that was expected.

However, and unexpectedly, the Federal Government through the Brazilian Federal Revenue instituted compulsory social security contribution employer retention based on 20% on income credited to Sole Proprietorship, through Tax Regulatory Instruction 1,453, of February 24, 2014 that the principle was only required in relation to the MEI who had been hired to provide hydraulic services, electricity, painting, masonry, carpentry and maintenance or repair of vehicles.

This new tax obligation, therefore, reaches almost 4.741.091 Sole Proprietorship which will suffer a withholding the invoices that were to issue, this retention to your view, if shows unconstitutional, as henceforth will expose.

Thus, there remained other ways for the Sole Proprietorship, unless this which appears to require the Brazilian Authority to be away any Constitution of the tax credit in question in services that henceforth were to perform.

With the issue of Tax Regulatory Instruction nº 1,453, of February 24, 2014, the internal revenue service of Brazil, that altered the Tax Regulatory Instruction 971, of November 13, 2009, the same organ of public administration, was established, through its article 201 the contractor for services performed through the MEI maintains, with regard to this contract, the obligation of payment of the contribution referred to in subsection (III) and paragraph 5 of art. 72, as well as the ancillary obligations relating to the employment of individual contributor:

§1 in accordance with §1 of art. 18-B of Act nº. 123, from 2006, with wording by Act nº. 139, of November 10, 2011, applies the provisions of heading: (wording by normative instruction RFB paragraph 1,453, of February 24, 2014) (Rectified in the 4/10/2014, Section 1, PG. 34)

I-about MEI who is hired to provide hydraulic services, electricity, painting, masonry, carpentry and maintenance or repair of vehicles from July 1, 2009; (Included by normative instruction RFB paragraph 1,453, of February 24, 2014)

II-as regards other services provided through the MEI, from February 9, 2012. (Included by normative instruction RFB paragraph 1,453, of February 24, 2014)

In his original essay the Brazilian Federal Revenue Regulatory Instruction nº 971, of November 13, 2009, had, on the basis of the wording of article 72, which social security contributions borne by the company or equated, in compliance with the specific provisions of this Normative Statement, are:

(...)

III-20% (twenty per cent) on the total remuneration paid or credited, in any capacity, in the course of the month, policyholders individual taxpayers to provide services, to facts that occurred from March 1, 2000 generators;

According to the Act nº. 123 of December 14, 2006, considered the Sole Proprietorship as referred to in article. 966 of Law nº. 10,406, of January 10, 2002 (Brazilian Civil Code), which has received gross revenue in the previous calendar year, up to R$ 60,000.00 (sixty thousand reais), opting merely national and who is not prevented from opting for systematic referred to in §1 of article 18-C of Act nº. 123/2006. (Wording by Act nº. 139, of November 10, 2011).

 That is, the one individual who has professionally arranged for production or economic activity that promotes the movement of goods or services and that is within the limits of revenues established by Act elsewhere, is considered an all-purpose MEI.

The same Law establishes the normative model of payment of taxes and contributions covered by Simples Nacional - a simplified taxation system designed for mini or small Brazilian business -, based, strictly speaking in paying fixed monthly values, regardless of the perception of revenue received by it, pursuant to article transcribed bellow:

Art. 18. The Sole proprietorship - MEI may opt for the payment of taxes and contributions covered by Simples Nacional in fixed monthly values, regardless of gross revenue for he earned in the month, as provided for in this article. (effective: July 1, 2009)

(...)

V-the Sole Proprietorship shall collect, as regulated by the Steering Committee, fixed monthly value corresponding to the sum of the following installments: (production of effects: July 1, 2009)

a) R$ 45.65 (forty five reais and sixty-five cents), the title of the contribution referred to in item (IV) of this paragraph; (effective: July 1, 2009)

(b)) R$ 1.00 (one real), in respect of the tax referred to in subsection VII of the caput of the art. 13 this Act, if a taxpayer of the ICMS; and (effective: July 1, 2009)

c) R$ 5.00 (five reais), in respect of the tax referred to in item VIII of caput of art. 13 this Act, if ISS contributor; (effective: July 1, 2009)

It is clearly, within this model of payment of taxes, that the MEI collaborates with the constitutional principle of solidarity which governs mainly Social Security, particularly in relation to the payment of social security contribution base of 11 percent per month for each invoice

Nevertheless, Act itself, determines that the services performed through the MEI will be subject to a retention by way of social security contribution in the order of 20%:

Art. 18-B. The contractor for services performed through the MEI maintains, with regard to this contract, the obligation of payment of the contribution referred to in paragraph III of the caput and paragraph 1 of art. 22 of Law nº. 8,212 of July 24, 1991, and the ancillary obligations relating to the employment of individual contributor. (effective: July 1, 2009)

However, the same law that limited retention for specific services, i.e. only the MEI to perform hydraulic services, electricity, painting, masonry, carpentry and maintenance or repair of vehicles is that you will be subject to this taxation.

§ 1 applies the provisions of heading towards MEI who is hired to provide hydraulic services, electricity, painting, masonry, carpentry and maintenance or repair of vehicles. (Wording by law Supplement No. 139, of November 10, 2011)

THE VIOLATION OF THE STRICT PRINCIPLE OF LEGALITY:

Article 201 of the Tax Regulatory Instruction 1,453/2014, when confronted with the §1 of article 18-C of the Act 123/2006 it is clearly unconstitutional.

The Brazilian Constitution provides in Article 150, that without prejudice to other guarantees provided to the taxpayer, is sealed to the Union, the States, the Federal District and the municipalities:

I-demand or increase tribute without law that establish it;

In strict sense, the law, formal source of law is the culmination of a process, and can be considered as "the most modern form of production. Is Act of the legislature, which sets standards in accordance with social interests "(NADER, 2004, p. 139); the whole process of creation of the standard should, therefore, necessarily, if subject to the dictates established by the Constitution itself, mainly about the deliberative phases requirements and confirmatory. Ordinances of the Ministry of finance or even Normative Statements of the internal revenue service of Brazil, given to unilaterally as are produced, do not supply this need, which imposes its non-application.

Well, it seems that which cannot be mistaken that the Tax Regulatory Instruction, by extending the chances of incidence that lead the retention of social security contribution Employer infringed the principle highlights.

To Hugo de Brito Machado[1] "Such principles exist to protect the citizen against abuses of power. In the face of the teleological element, therefore, the interpreter, which is aware of this purpose, search on these principles the effective protection of the taxpayer. "

THE BREACH OF THE PRINCIPLE OF IRRETROACTIVITY:

You can't collect tribute on the situations that occurred before the beginning of the validity of the law that has defined that is, the law always applies to facts occurring after generating the beginning of his term.

The general rule is the irretroactivity of the law, being the exception occurrence of retroactive laws, such as laws more benign to the taxpayer or even criminal law.

As Ricardo Cunha Chimenti[2] teaches, "facts occurring before generators from the beginning of the validity of the law that there are established or increased taxes (established the chance of incidence or the higher rate) does not entail obligations. The new law does not apply to the facts already consummated generators (art. 105 Brazilian Tax Code) ".

About the aforementioned teachings, it is important to note that the nominated Normative Instruction, to establish the social security contribution Employer about other possibilities of incidence, several of those provided for in item I of article 201, violated the principle of irretroactivity.

This is because she gives Tax Authority the right to constitute the tax credit on every fact generators that occurred from February 9, 2012.


[1] MACHADO, Hugo de Brito. Curso de direito tributário. São Paulo: Malheiros, 2008, p. 52 e 58.

 

[2] CHIMENTI, Ricardo Cunha. Direito tributário. São Paulo: Saraiva, 2006, p. 65.


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