Releitura da norma tributária favorece a terceirização

Releitura da norma tributária favorece a terceirização

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Um entendimento da Receita Federal pode tornar a terceirização trabalhista ainda mais vantajosa ao empregador, mas o tema não está pacificado. Segundo especialistas, o Fisco buscou solucionar divergências, mas abriu espaço para movas contestações e discordâncias.

Com a nova interpretação, a Receita Federal buscou esclarecer que tipo de despesa com mão de obra seria passível de gerar crédito tributário relativos ao PIS e a Cofins.

Hoje, a maioria das empresas paga uma alíquota cheia de PIS e Cofins de 9,25% sobre a receita bruta, mas esse valor pode ter descontos.

Esses descontos são calculados sobre despesas da empresa, como a compra de insumos, desde que diretamente ligadas à operação da companhia. E podem ser usados para abater outros tributos.

No texto, com o nome técnico de ‘solução de divergência’, a Receita diz que podem gerar créditos de PIS e Cofins os “dispêndios da pessoa jurídica com a contratação de empresa de trabalho temporário para oferecer mão de obra temporária” aplicada diretamente na produção ou na prestação de serviços.

Parte dos especialistas avalia que a Receita fala apenas em mão de obra ‘temporária’ porque quando a consulta foi feita, em janeiro, a terceirização da atividade principal não era permitida –a lei foi ampliada em março.

Para Pedro Teixeira, sócio do Bichara Advogados, como a terceirização só era permitida em atividades que não eram ligadas diretamente à atividade-fim das empresas, era ponto pacífico que as despesas com terceirização não geravam crédito tributário.

Mas Teixeira avalia que a mudança na lei trabalhista e a solução da Receita abrem espaço para isso, ainda que o texto do Fisco não se refira claramente à terceirização.

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“Os valores que eu pago para a terceirizada podem gerar créditos de PIS e Cofins porque está entendido que eles são insumo para a minha operação”, diz ele.

Não é o que pensa Valéria Zotelli, sócia da área tributária do Miguel Neto.

Segundo ela, a Receita se refere à mão de obra temporária e interpretar além disso é “temerário”.

A regulamentação tributária, diz Zotelli, permite que as despesas das empresas com insumos gerem crédito tributário, mas nega o mesmo para despesas na contratação direta de funcionários.

E interpretações anteriores da própria Receita, lembra ela, negavam essa possibilidade para a contratação de mão de obra por meio de pessoa jurídica tentando evitar uma espécie de “planejamento tributário” das empresas com base na terceirização.

Fernanda Sá Freire, sócia da área tributária do Machado Meyer, diz que a posição da Receita é suficiente para sustentar o argumento de que a terceirização da atividade principal é passível de gerar crédito de PIS e Cofins, mas admite que a solução do Fisco não abordou especificamente a questão.

Para João Cayres, secretário-geral da CUT (Central Única dos Trabalhares), a geração de créditos tributários pelo trabalho terceirizado estimula a precarização do trabalho. “Eles estão transformando a mão de obra em insumo. É a mercantilização total da pessoa”, afirma.

Fonte: Folha de S.Paulo
Data: 23 de novembro de 2017
Acesso:24 de novembro de 2017

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