PLR paga mais de duas vezes ao ano deve ser tributada, decide Carf

PLR paga mais de duas vezes ao ano deve ser tributada, decide Carf

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Por Bárbara Mengardo

O Conselho Administrativo de Recursos Fiscais (Carf) bateu o martelo sobre duas polêmicas a respeito do pagamento de Participação nos Lucros e Resultados (PLR) pelas empresas. Em julgamentos realizados na quarta-feira (24/8), a instância máxima do conselho definiu que as companhias devem recolher tributo sobre planos pagos a trabalhadores mais de duas vezes ao ano ou nos casos em que o trabalhador não é informado com antecedência sobre os detalhes da PLR.

Ao analisar um processo do Itaú Seguros contra a Fazenda Nacional, o Carf entendeu que todas as parcelas pagas aos funcionários devem ser tributadas nos casos em que os pagamentos da PLR ocorreram em desacordo com a periodicidade prevista na Lei 10.101/00.

A limitação temporal para pagamento da PLR consta no artigo 3º da lei de 2000. A atual redação do dispositivo prevê que o benefício não pode ser pago mais de duas vezes ao ano ou em periodicidade inferior a um trimestre.

O processo analisado pelo Carf, porém, trata de fatos ocorridos entre 2007 e 2008, quando vigia regra que proibia PLRs pagas mais de duas vezes ao ano ou com periodicidade inferior a um semestre.

Para a maioria dos conselheiros da Câmara Superior, o pagamento em periodicidade inferior à prevista na Lei 10.101 desconfigura a PLR, sendo necessário o recolhimento da contribuição previdenciária. Os julgadores, porém, entenderam que o pagamento deve ser feito apenas sobre os valores pagos a trabalhadores que receberam mais vezes do que o previsto na legislação específica. A PLR paga aos demais trabalhadores é regular.

Por outro lado, os conselheiros consideraram que nos casos de PLRs com periodicidade inferior ao da Lei 10.101 todas as parcelas pagas pela empresa devem ser tributadas. A companhia pedia que apenas as parcelas em desacordo com a norma fossem tributadas, estando as demais isentas.

Para o relator do caso, conselheiro Luiz Eduardo de Oliveira Santos, a regra de periodicidade da Lei 11.101 garante a não incidência da contribuição previdenciária. Em caso de descumprimento da norma, é necessária a tributação de todas as parcelas. “Condição para a natureza não substitutiva do salário é a observância do interstício”, disse.

Por meio de sus assessoria de imprensa, o Itaú Unibanco declarou que “entende que a decisão é contrária aos precedentes do CARF, ao desconsiderar os pagamentos efetuados dentro da periodicidade prevista na Lei 10.101/00”. O banco destacou ainda que “após publicada a decisão, estudará recorrer ainda na esfera administrativa ou ao Poder Judiciário”.

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Ciência prévia

Em outro precedente importante aberto pela Câmara Superior, foi definida a tributação da PLR quando o plano não é instituído aos funcionários no início do exercício no qual será pago.

A Receita Federal considera que, nesses casos, a PLR é irregular pelo fato de os funcionários não conhecerem os termos do benefício com antecedência.

O processo, que envolve a Kaiser e a Fazenda Nacional, também foi relatado pelo conselheiro Luiz Eduardo de Oliveira Santos. O julgador defendeu que o objetivo da PLR é estimular um “esforço adicional” do trabalhador. Para tanto, porém, é necessário que o funcionário saiba com antecedência das condições do plano.

As empresas, por outro lado, alegam que nem sempre é possível traçar a PLR no início do ano, devido a dificuldades de relação com os sindicatos, por exemplo. Em outros casos, as regras para recebimento de PLR não são alteradas de um ano para o outro.

Os julgamentos finalizados na quarta-feira começaram a ser analisados pelo Carf em julho. Na ocasião a Câmara Superior definiu que não é válida a PLR paga a administradores ou diretores estatutários e que deve ser tributado o plano instituído sem a presença do sindicato.

Processos tratados na matéria:

Processo 16327.720881/2012-88
Processo 13864.720081/2011-19

Fonte: JOTA
Data: 26 de agosto 2016
Acesso: 29 de agosto de 2016

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