[Free translation]
In the past, in accordance with article 22, items I and III, of Law No. 8,212 / 91, companies were subject to the payment of the Social Security Contribution on their payroll.
Subsequently, with the advent of Law 12,546 / 11, as part of the package of changes called "Greater Brazil", the employer's social security contribution was replaced by a new contribution to certain activities, the CPRB, which started to focus on the amount of revenue gross in a variable percentage, excluding sales canceled and unconditional discounts granted.
Law 12,546 / 11 consolidated the incidence rates on gross revenue, as well as including several branches of economic activity in this new system of collecting the social security contribution, changing the tax incidence of the payroll to corporate income.
It occurs that the Federal Treasury has been giving an unconstitutional interpretation to the rule that deals with the calculation basis of the CPRB, since it considers that the concept of revenue also includes the value related to ICMS and the ISS perceived by the company.
As a result of this misinterpretation, the Brazilian Federal Revenue has been demanding, since the entry into force of Law 12,546 / 11, that taxpayers collect the CPRB with the undue inclusion of ICMS and ISS in its calculation base.
Considering that there are already judicial decisions to the effect that the taxpayer has the right to exclude the amounts referring to ICMS and ISS from the basis for calculating the substitutive tax levied on gross revenue, established by Law 12,546 / 2011, we recommend to companies that have been obliged or who continue to make use of this new system of collecting the social security contribution, through the filing of a judicial measure, to repeat the amounts unduly collected in the last five years, as well as the judicial declaration reducing the tax base. CPRB for the future.
