Carf começa a analisar caso de “pejotização”

Carf começa a analisar caso de “pejotização”

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Por Bárbara Mengardo

O tema polêmico no direito trabalhista, a “pejotização” entrou em pauta também no Conselho Administrativo de Recursos Fiscais (Carf). A instância máxima do tribunal administrativo recebeu processo que discute a incidência de Contribuição Previdenciária sobre o salário de funcionários contratados como pessoas jurídicas. Ao que tudo indica, porém, os conselheiros não devem analisar o mérito do caso.

Por meio da “pejotização”, empresas contratam funcionários por meio de pessoas jurídicas. Com isso, as companhias evitam obrigações decorrentes de relações trabalhistas, como o pagamento da contribuição previdenciária.

No Carf o assunto começou a ser analisado na terça-feira (23/08) pela 2ª Turma da Câmara Superior, última responsável pelo julgamento de casos envolvendo contribuição previdenciária (Processo 10680.722064/2011-78).

A Receita Federal cobra da ECM Projetos Industriais a contribuição ao INSS incidente sobre o salário dos empregados que supostamente deveriam ter sido contratados de acordo com a Consolidação das Leis do Trabalho (CLT), mas foram contratados como pessoas jurídicas.

O principal elemento que levou a fiscalização a considerar prática irregular foi a concessão de seguro de vida e plano de saúde a empregados contratados como pessoas jurídicas. Para o Fisco, o fato configuraria subordinação, havendo relação de trabalho.

A companhia, por sua vez, elenca o artigo 129 da Lei 11.196/2005 para defender a impossibilidade de cobrança da contribuição previdenciária. O dispositivo define que “para fins fiscais e previdenciários, a prestação de serviços intelectuais, inclusive os de natureza científica, artística ou cultural, em caráter personalíssimo ou não, com ou sem a designação de quaisquer obrigações a sócios ou empregados da sociedade prestadora de serviços, quando por esta realizada, se sujeita tão-somente à legislação aplicável às pessoas jurídicas”.

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O advogado da ECM Projetos Industriais, Valter de Souza Lobato, do Sacha Calmon – Misabel Derzi Consultores e Advogados, questiona ainda o fato de a Receita Federal ter presumido que há relação de trabalho a partir do pagamento de seguro de vida e plano de saúde. “É muito claro que esse requisito não consta na CLT”, disse.

Não conhecido

O resultado parcial do julgamento demonstra que o tema pode continuar indefinido no Carf. Quatro dos oito conselheiros presentes na sessão da Câmara Superior votaram por não conhecer do recurso. São eles: Heitor de Souza Lima Júnior, Maria Helena Cotta Cardozo, Patrícia da Silva e Elaine Cristina Monteiro e Silva Vieira.

Para os julgadores, os acórdãos trazidos pelas partes para que o recurso fosse admitido na Câmara Superior não tratam do mesmo assunto. O requisito para o julgamento de um recurso na instância máxima do Carf  é a comprovação, pelas partes, de que existem decisōes opostos das câmaras ordinárias do conselho.

Divergiu a conselheira Ana Paula Fernandes, que votou por conhecer parte do recurso. Pediu vista o conselheiro Gerson Macedo Guerra. O caso deverá voltar à pauta na próxima sessão da 2ª Turma da Câmara Superior, a ser realizada entre os dias 27 e 29 de setembro.

Lima Júnior, que é relator do caso, afirmou ainda que caso entrasse no mérito da questão, votaria de forma favorável ao Fisco. Para ele, está caracterizada a subordinação entre a empresa e as pessoas físicas contratadas como pessoas jurídicas.

Fonte: JOTA
Data: 25 de agosto de 2016
Acesso: 29 de agosto de 2016

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