Empresas do Simples não são obrigadas a recolher o adicional de 10% do FGTS s/ rescisões

Empresas do Simples não são obrigadas a recolher o adicional de 10% do FGTS s/ rescisões

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A Lei Complementar nº 110/2001 instituiu a contribuição social devida pelos empregadores em caso de despedida de funcionários sem justa causa.

Assim, o empregador teria que pagar uma alíquota de 10% sobre o montante de todos os depósitos devidos, referentes ao FGTS durante a vigência do contrato de trabalho.

A referida porcentagem acresce-se aos devidos 40% da multa do FGTS e aos demais encargos que a legislação trabalhista lhes exige. Em outras palavras, esses 10% previstos pela LC 110/2001 têm natureza tributária, enquanto os 40% da multa, não.

Diante disso, a empresa optante pelo Simples Nacional, esta desobrigada/isenta do recolhimento dessa contribuição social.

Com a Lei do Simples Nacional (Lei Complementar nº 123/2006), as pequenas e médias empresas estão amparadas a recolher unificadamente os seguintes tributos através de guia única, conforme preceitua o art. 13: IRPJ / IPI / CSLL / COFINS / PIS/Pasep / CPP / ICMS / ISS.

Entretanto, estão dispensadas do pagamento das demais contribuições instituídas pela União, conforme previsão do artigo 13, § 3º, da Lei Complementar nº 123/2006:

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Art. 13…(…)

§ 3º As microempresas e empresas de pequeno porte optantes pelo Simples Nacional ficam dispensadas do pagamento das demais contribuições instituídas pela União, inclusive as contribuições para as entidades privadas de serviço social e de formação profissional vinculadas ao sistema sindical, de que trata o artigo 240 da Constituição Federal, e demais entidades de serviço social autônomo.

Essa previsão faz com que não seja possível exigir da microempresa e da empresa de pequeno porte quaisquer das demais contribuições instituídas pela União, salvo aquelas que foram expressamente incluídas ou ressalvadas na lei.

E uma vez que a contribuição social instituída pelo art. 1º da Lei Complementar nº 110/2001 não foi incluída no rol de tributos sujeitos a recolhimento unificado, previsto no art. 13 da Lei Complementar nº 123/2006, nem foi excepcionada pelo § 1º do mesmo artigo, sua imposição ao optante do Simples Nacional é inadmissível.

Com base nesses fundamentos, o Tribunal Regional Federal da 4ª Região e da 1ª Região tem decido a favor dos contribuintes, e determinando à restituição do montante pago indevidamente.

Dessa maneira, é cabível a restituição dos valores pagos dos últimos 05 anos.

Fonte: Contábeis
Data: 09 de agosto de 2017
Acesso: 25 de agosto de 2017

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