DECISÃO: Despesas com o PAT podem ser deduzidas do lucro real das empresas limitado a 4% do IR devido

DECISÃO: Despesas com o PAT podem ser deduzidas do lucro real das empresas limitado a 4% do IR devido

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Empresas que se inscreverem no Programa de Alimentação do Trabalhador (PAT), e optarem pelo fornecimento de Vale-Refeição em vez de manter setor próprio para o preparo e fornecimento de refeições, podem deduzir as despesas do lucro tributável das pessoas jurídicas no Imposto de Renda (IR). Porém, a dedução não pode ser integral, conforme decidido pela 8ª Turma ao julgar apelação da Fazenda Nacional.

A sentença do Juízo Federal da Subseção Judiciária de Sete Lagoas havia concedido a segurança para determinar que a Fazenda Nacional se abstivesse de exigir da empresa a fixação de preço máximo por refeição a ser deduzido, conforme restrição contida no Decreto nº 05/91, bem como de efetuar a dedução do IR das despesas integrais com o PAT.

O juízo também assegurou à impetrante o direito de compensar os valores de Imposto de Renda – Pessoa Jurídica (IRPJ) que foram indevidamente recolhidos nos últimos 10 anos.

A apelante alega, preliminarmente, que o mandado de segurança não é a via adequada para requerer a compensação de pagamentos efetuados em período anterior à impetração, e pede que seja aplicada a prescrição quinquenal. Aduz que os atos administrativos – portarias e instruções normativas – editados posteriormente, reajustando assim os valores limites para compensação, foram endereçados aos administrados subordinados aos três ministros que as editaram.

Ao analisar o caso, o relator, juiz federal convocado Bruno Apolinário, destacou que a Portaria Ministerial MTB/MF/MS 326/77 e as Instruções Normativas 143/86 e suas reedições até a 267/2002 estipularam percentuais e custos máximos de refeição diferentes dos estabelecidos na Lei nº 6.321/76, que havia estabelecido a dedução dos percentuais de 5% a 10%.

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O magistrado assinalou que ao alterar a parcela dedutível do lucro tributável, e, consequentemente, a base de cálculo do imposto, as normas infralegais ultrapassaram os limites da lei, “inovando indevidamente a respectiva matéria”.

O juiz cita ainda precedentes do Superior Tribunal de Justiça (STJ) no sentido de que  tanto a portaria quanto a instrução normativa estabeleceram limitações ilegais não previstas na Lei nº 6.321/76 quanto a condição de gozo do incentivo fiscal relativo ao PAT ao fixarem custos máximos para as refeições individuais oferecidas.

A compensação, de acordo com o relator, deve ser realizada por iniciativa do próprio contribuinte por meio de declaração, condicionada à homologação da autoridade fiscal.

Programa de Alimentação do Trabalhador – O PAT foi criado pela Lei nº 6.321/76. O incentivo está concedido em seu art. 1º, que foi incorporado pelos (arts. 581/582 do RIR). A empresa pode, também, inscrevendo-se no PAT, optar pelo fornecimento de vale-refeição em vez de manter setor próprio de preparação e fornecimento de refeições. O vale-refeição é a forma adotada pela maioria das empresas.

Processo nº 0002512-49-2010.401.3812
Data de julgamento: 21/11/2016

Fonte: Tribunal Regional Federal da 1ª Região
Data: 27 de janeiro de 2017
Acesso: 03 de fevereiro de 2017

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