In a vote that ended last Friday (18/06), the Federal Supreme Court (STF) defined that the ISS forms the basis for calculating the Social Security Contribution on Gross Revenue (CPRB)
By majority vote, at the conclusion of the judgment of RE 1,285,845 with recognized general repercussions (Theme 1,135), the thesis was established: “and constitutional the inclusion of the Tax on Services of Any Nature (ISS) in the calculation basis of the Social Security Contribution on Gross Revenue (CPRB).”
The analysis of the issue followed the same line of reasoning adopted in the judgment of RE 1,187,264, in February of this year, also with recognized general repercussions (Theme 1,048) and which decided on the constitutionality of including ICMS in the CPRB calculation basis. At that time, the majority of the ministers followed the divergence opened by Alexandre de Moraes, who assessed that the CPRB, as a tax benefit, represents a company's option to adhere or not to the method in replacement of the contribution on the payroll.
Furthermore, he highlighted that the central point of the discussion is supported by the amendment to Law 12.973/2014, by which the concept of net revenue is now defined as the difference between gross revenue and, among other components, taxes levied on it. In the words of the minister: “Therefore, according to current legislation, if net revenue includes gross revenue, minus, among others, applicable taxes, it means that, contrario sensu, gross revenue includes the taxes applicable thereto.“.
These same arguments were used in an analogous manner in the decision that culminated in the inclusion of the ISS in the CPRB calculation basis. Once again, the ministers followed the divergence opened by Alexandre de Moraes who, in addition to bringing the elements of the paradigm decision, based his vote on the idea that excluding the ISS from the CPRB calculation would imply an expansion of the tax benefit and “would be acting as a positive legislator, modifying the tax rules inherent to the substitute social security contribution established by Law 12,546/2011, which would also lead to a violation of the principle of separation of powers”.
The rapporteur, Minister Marco Aurélio, was defeated, and his vote was supported by Ministers Rosa Weber and Cármen Lúcia. Marco Aurélio, who was also defeated in the judgment on ICMS based on the CPRB, defended the same arguments presented at the time and had proposed the thesis: “The inclusion of the Tax on Services of Any Nature (ISSQN) in the calculation basis for the Social Security Contribution on Gross Revenue (CPRB) appears to be incompatible with the Federal Constitution..”
