Liminares autorizam empresas a não adotar desoneração na folha em 2018

Liminares autorizam empresas a não adotar desoneração na folha em 2018

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Entendimentos de 1ª e 2ª instância afastam aplicação da Lei nº 13.670/2018, promulgada no fim de maio

Ao menos duas decisões judiciais concederam a uma empresa e aos membros de uma associação o direito a se manter no regime da apuração da Contribuição Previdenciária sobre a Receita Bruta (CPRB) conforme a Lei nº 12.546/2011. Em caráter liminar, as decisões são das primeiras a contrariar o previsto na Lei nº 13.670/2018, que obriga o recolhimento pela sistemática da desoneração.

As decisões vêm de São Paulo e do Rio de Janeiro, mas têm como base argumento semelhante: ao promover a mudança da CPRB para a desoneração na folha no meio de um ano-calendário, o planejamento feito pelas empresas,  considerado irretratável, estaria comprometido – o que configuraria uma afronta à segurança jurídica.

No dia 13 de agosto, o Tribunal Regional Federal da 3ª Região (TRF3) adotou o entendimento, concedendo às empresas associadas à Associação Brasileira da Indústria de Artigos e Equipamentos Médicos e Odontológicos (Abimo) o direito de continuar a recolher a contribuição sobre a folha de salários pela sistemática da CPRB, até o final do ano-calendário.

A CPRB era opcional para os contribuintes no início do ano. No sistema, empresas de setores específicos podiam efetuar o recolhimento da contribuição patronal sob uma alíquota de 2%, com base na receita bruta apurada.

O direito a recolher o tributo desta forma encerrou-se em maio deste ano, com a promulgação da Lei nº 13.670/2018. A nova sistemática, aprovada como reação do governo à greve dos caminhoneiros, obriga as empresas a recolherem a contribuição previdenciária sobre a folha de salários.

Na primeira instância, a associação teve o pedido de tutela antecipado negado,  apelando então ao TRF3. Responsável pelo caso, o desembargador Souza Ribeiro concedeu a medida à contribuinte. “Sendo a opção irretratável para o ano calendário, a modificação ou revogação do prazo de vigência da opção atenta contra a segurança jurídica”, afirmou o magistrado.

Souza Ribeiro lembrou que, prevista a possibilidade de escolha pelo contribuinte do regime de tributação – sobre a folha de salários ou sobre a receita bruta – com período determinado de vigência, de forma irretratável, a alteração promovida pela Lei nº 13.670/18 “viola, também, a boa-fé objetiva do contribuinte, que, na crença da irretratabilidade da escolha, planejou suas atividades econômicas frente ao ônus tributário esperado”.

O advogado Felipe Esteves Grando, sócio diretor no Rossi, Maffini, Milman & Grando Advogados, que participou da defesa da contribuinte, diz que a mudança seria prejudicial. “Na medida em que, no meio do exercício, há uma legislação que estabelece que aqueles contribuintes deverão, a partir de setembro, retornar para o regime jurídico [da desoneração da folha de salários], se entende que isso afeta a segurança jurídica, a previsibilidade da tributação e a confiança na administração.”

Desoneração afastada em 1ª instância

Dias antes, uma decisão 1ª instância também adotou entendimento similar. No início do mês de agosto, uma decisão em um processo judicial na 2ª Vara Federal de Nova Iguaçu (RJ) garantiu a uma empresa exportadora de carnes as mesmas garantias de recolhimento.

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Na liminar, do dia 1º de agosto, o juiz federal Rafaelle Felice Pirro autorizou a recorrente, que escolheu o regime de tributação da CPRB no início de 2018, a manter a opção ate o fim do ano-calendário.

O fato de a Lei ter sido aprovada no meio do ano baseou a decisão do juiz federal. De acordo com Pirro, a nova redação não revoga o caráter irretratável, que é parte essencial da legislação anterior.

“Na referida Lei [nº 13.670/2018], que instituiu a desoneração da folha, não consta dispositivo que disponha sobre a revogação do caráter irretratável da opção realizada no mês de janeiro pelo contribuinte”, argumentou Raffaelle

Com isso, entende o juiz, não há amparo legal para a alteração do regime de tributação no curso de um ano-calendário, sob pena de “grave afronta aos princípios da segurança jurídica, não surpresa, boa-fé objetiva, lealdade, da confiança legítima, da moralidade e da isonomia”.

A decisão vale até o final do exercício de 2018. A partir do ano-calendário de 2019, a empresa deverá obedecer a Lei nº 13.670/2018.

Justa expectativa

De acordo com o advogado responsável pelo caso de 1ª instância, Gustavo Falcão, a decisão tem efeitos fundamentais sobre o planejamento da recorrente. O sócio do contencioso tributário do Manucci Advogados explica que, “como trata-se de uma decisão irretratável, feita em janeiro, cria-se a expectativa do contribuinte. Ele se preparou financeiramente para passar aquele ano, em termos de gestão, considerando a fração sobre a CPRB e não sobre a sistemática da folha”.

“Se é para valer esta Lei [nº 13.6780/2018], independente de sua constitucionalidade, ela não pode começar a valer sobre um ano-calendário que já começou. Não se pode mudar a regra do jogo no meio do jogo” Gustavo Falcão, sócio do contencioso tributário do Manucci Advogados.

Segundo Falcão, o prazo dado na decisão também é importante. Em casos como este, segundo o tributarista, a decisão judicial normalmente contempla apenas o prazo de 90 dias, previsto na Constituição, nos casos de alteração na cobrança tributária. “Ao receber um pedido de liminar, o juiz considera o prazo de 90 dias suficiente, e não até o final do ano-calendário”, analisou.

O tributarista pontuou que a discussão sobre regimes de contribuição não é temática nova, mas que a mudança na Lei nº 13.670/2018 começa, apenas agora, a gerar suas primeiras decisões.

Fonte: JOTA
Data: 28 de agosto de 2018
Acesso: 31 de agosto de 2018

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