Payroll relief: experts advise companies to return to the Social Security contribution regime, as early as May

For Eduardo Natal, a master in tax law from PUC-SP, partner at the law firm Natal & Manssur, the injunction granted by minister Cristiano Zanin to the government has prospective effect. This means that since the publication of the decision, on April 25th, companies could no longer count on the exemption.

“April’s salary will be paid in May. From May onwards, I believe that companies should now collect based on payroll — and no longer based on gross revenue”, he assesses.

The law suspended by the minister gives companies in 17 sectors of the economy the option of exchanging contributions to Social Security — which is 20% of employees’ payroll — for payment of up to 4.5% of revenue (revenue gross).

Tax specialist and partner at RMS Advogados, Leonardo Roesler says that an injunction has immediate effect, except when the decision makes the opposite clear.

“The decision does not explicitly mention a starting date and also does not explain the application of the nineteen, so that companies can begin to apply these rates. My reading is that there is an immediacy related to the decision and the beginning of its validity after the publication. If it has immediate effect, I would advise companies to do so after April 25th.”

The idea is that companies act as a precaution. It is better, in this scenario, to err on the side of excess, believes Roesler, because if the STF decides to continue the exemption after the resumption of the trial, the productive sector will be able to ask the public authorities to reimburse the taxes paid in excess since Minister Zanin’s decision.

“Obviously, this causes disruption within the flow and short to medium term planning. However, if the exemption is maintained by a PEC or even by a reversal of the decision itself, companies can return to the Judiciary to seek corrections for what they paid the biggest to the federal government”, he points out.

STF decides whether to maintain Zanin’s decision, which suspended exemption from the payroll for the productive sector and municipalities

Does Noventena apply?

For Eduardo Natal, the injunction does not allow the application of nonagesimal precedence. The so-called nineteena is a constitutional principle that prohibits the government from creating or increasing taxes before 90 days of publication of the law that created or increased them.

“When it (law that extended the exemption) was created, it did not create a new tax. It extended a benefit. You would have, at the end of 2023, the cessation of a benefit, therefore, there would not be a ninety, it is not the creation of a tax nor an increase. Is revoking a tax benefit an increase if it had an end date?”, he asks.

What could happen, according to Natal, is that a possible decision to end the benefit is accompanied by a modulation of the effects, in which the STF would grant a 90-day transition period for companies.