Legal entity rural employer must contribute to social security and to the Senar

The Federal Supreme Court declared constitutional the contribution to the gross revenue of a rural legal entity employer resulting from the commercialization of its production. The decision occurred in the judgment of Extraordinary Appeal 700922. It is another decision that maintains taxation of the agricultural sector.

Recently, the same STF judged the differentiated contributions to the Senar to be constitutional (RE 816830) and that of article 22-A, of Law 8.212/1991, for agroindustry (RE 611601). These questions have points in common. But they are not identical.

In the case of RE 700.922, as disclosed by the STF, the taxpayer claimed, among other points, that Law 8.870/1994 would incur a "double taxation defect" (in fact, bis in idem). This is because it provided for taxes on the same calculation basis adopted for PIS and Cofins -- revenue. There was also an allegation of formal unconstitutionality.

Double taxation, in Tax Law, occurs when two entities demand tax due to the same "triggering event". In turn, bis in idem refers to a situation in which the same entity demands different taxes on the same taxable event. The Latin expression bis in idem literally means "more of the same".

In the judgment of the case by the Federal Regional Court of the 4th Region (RS, SC and PR), the tax was judged unconstitutional. As a basis, the judges pointed out: (a) the bis in idem; and (b) creation by ordinary law, when the correct option would be to use complementary law.

Part of the summary of the ruling:

"[...] 2 - The unconstitutionality of art. 25, items I and II, of Law No. 8.870/94 was recognized by this Court, in the Claim of Unconstitutionality in AMS No. 1999.71.00.021280-5/RS.

3 - The contribution on the gross revenue arising from the commercialization of rural production, owed by the legal entity rural employer, established by this legal provision, is not required.

4 - Law No. 10.256/2001, by modifying the wording of the caput of art. 25 of Law No. 8.870/1994, did not change the essence of the original provision."

The ruling on the aforementioned claim of unconstitutionality received the following summary:

" TAX. ARGUMENT OF UNCONSTITUTIONALITY. ART. 25, CAPUT, ITEMS I AND II AND § 1, OF LAW No. 8.870/94. CONTRIBUTION TO SOCIAL SECURITY ON RURAL PRODUCTION, EQUIVALENT TO INCOME. SAT. SENAR. EMPLOYER LEGAL ENTITY. COFINS. DOUBLE UNCONSTITUTIONALITY (CF, ART. 195, I AND ITS § 4). DOUBLE TAXATION.

[...] 3. The modification of the basis for calculating the social contributions of the rural legal entity employer for rural production was motivated by the greater financial return, as the contribution on the payroll, given the historical informality of labor relations developed in rural areas and the mechanization of agricultural production, did not satisfy the necessary and mandatory provision of full coverage of social security and social assistance financing for rural people.

4. Art. 25, caput, items I and II and § 1 of Law 8.870/94, by classifying the employer, a legal entity, as a taxpayer on the gross revenue arising from the commercialization of its rural production, at the rate of 2,5%, 0,1 % for SAT and 0,25% for SENAR, directly contradicted articles 195, §§ 4th and 8th, of CF/88, causing double unconstitutionality under the material aspect, not being a simple extension of passive subjection to achieve different taxpayer, but also double taxation, because it re-applied the tax on revenue, which is provided for in article 195, § 8, of the Magna Carta.

5. The legal entity Rural Producer is equated to a company, just as the gross revenue from the commercialization of rural production is equated to revenue, on which COFINS already applies (art. 195, I, b), exhausting the constitutional possibility of an institution contribution, through ordinary law, on the same calculation basis.

6. Art. 195, § 4, c/c 154, I, of CF/88 prevents the superimposition of Social Security contributions with the same triggering event. The specific case does not resemble the constitutional admission of the same calculation basis for COFINS (art. 195, I), PIS (art. 239), contribution to cooperation entities forming part of the S system (art. 240), hypotheses in which the Magna Carta authorizes tax superimposition on similar taxable events, due to their having different validity bases, having their genesis in dispersed provisions.

7. Paragraph 1 of art. 25 of Law No. 8.870/94, which changed the basis for calculating the contribution to SENAR to 0,1% on rural production, increased to 0,25% by Law No. 10.256/2001, the contribution remains in accordance with art. 3rd, I, of Law No. 8.315/91, which created this service, at a rate of 2,5% on the payroll.

8. Although the STF understands that the concept of revenue encompasses the proceeds from the sale of production, in accordance with Law 8.870/94, the unconstitutionality mentioned must be unquestionably recognized because art. 195, paragraph 4 of CF/88 allows the geneticization of other funding sources other than those expressly provided for.

9. Accepting the argument of unconstitutionality, in full, to declare art. 25, caput, items I and II and § 1 of Law 8.870.

(TRF4, INAMS 1999.71.00.021280-5, SPECIAL COURT, Rapporteur ÁLVARO EDUARDO JUNQUEIRA, D.E. 06/12/2006)".

Despite these arguments, another was the understanding of the majority of STF ministers.

STF maintains taxation

In the STF, however, the minister's vote prevailed Alexandre de Moraes (picture of Fellipe Sampaio). He maintained that the Supreme Court's jurisprudence "is peaceful in the sense that social contributions can be instituted by ordinary law, as long as they fall within the constitutional hypotheses (article 195)". He also pointed out that the gross revenue resulting from sales is equivalent to the concept of revenue.

Also according to Alexandre de Morais, article 240 of the Constitution authorizes taxation on identical taxable events in the case of "private social service and professional training entities linked to the union system".

Thirdly, the minister said that Senar's contribution is authorized by article 149 of the Federal Constitution, as it is a contribution of interest to professional categories.

The winning position was followed by minister Cármen Lúcia and ministers Dias Toffoli, Gilmar Mendes, Luís Roberto Barroso, Luiz Fux and Nunes Marques.

The ruling is not yet available.

The trial minutes are as follows:

Decision: After the votes of Ministers Marco Aurélio (Rapporteur) and Edson Fachin, who were aware of the extraordinary appeal, they dismissed it and established the following thesis (theme 651 of the general repercussion): "The contribution to social security, borne by the employer, is unconstitutional rural legal entity, incident on the proceeds from the commercialization of production, provided for in article 25, items I and II, of Law No. 8.870/1994”; and the vote of the Minister Alexandre de Moraes, who differed from the Rapporteur to grant the Union's extraordinary appeal and deny the requested security, with the establishment of the following thesis: "It is constitutional, in the light of articles 195, I, b, and § 4, and 154, I, of the Federal Constitution, art. 25, I and II, and § 1, of Law 8.870/1994, which established the contributions due to social security by the employer, a legal entity, dedicated to rural production incident on the gross revenue from commercialization of its production", Minis requested a view of the casetro Dias Toffoli (President). The following spoke for the appellant, Dr. Geila Lídia Barreto Barbosa Diniz, Attorney for the National Treasury; and, by the assistant, Dr. Manuel Eduardo Cruvinel Machado Borges. Plenary, Virtual Session from 28.8.2020/4.9.2020/XNUMX to XNUMX/XNUMX/XNUMX.

Decision: The Court, by majority, considering topic 651 of general repercussion, granted the Union's extraordinary appeal, to deny the requested security, in accordance with the Minister's vote Alexandre de Moraes, Editor of the ruling, defeated Ministers Marco Aurélio (Rapporteur), Edson Fachin, Ricardo Lewandowski and Rosa Weber (President), who dismissed the appeal. Subsequently, the trial was suspended to establish the thesis at a later date. Minister André Mendonça, the Rapporteur's successor, does not vote. Plenary, Virtual Session from 9.12.2022/16.12.2022/XNUMX to XNUMX/XNUMX/XNUMX.

UPDATE (15.03.2023/XNUMX/XNUMX): The STF plenary, based on this judgment, issued the following theses (theme 651 of the general repercussion):

1) The contribution to social security borne by the rural legal entity employer levied on the gross revenue from the commercialization of its production, provided for in article 25, items I and II, of Law 8.870/1994, in the wording prior to Constitutional Amendment 20/, is unconstitutional. 1998.

2) The contribution to social security borne by the rural legal entity employer levied on the gross revenue from the commercialization of its production is constitutional, provided for in article 25, items I and II, of Law 8.870/1994, as amended by Law 10.256/2001 .

3) The social contribution destined to the National Rural Learning Service (Senar) referred to in article 25, paragraph 1, of Law 8.870/1994, including the wording given by Law 10.256/2001, is constitutional.