Simples Nacional – Comunicado de exclusão fora do prazo

Simples Nacional – Comunicado de exclusão fora do prazo

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Há uma confusão de prazo quando o assunto é exclusão do Simples Nacional Se a empresa excedeu o limite de faturamento anual de R$ 3,6 milhões em 2016 a exclusão é automática ou o contribuinte deve comunicar ao fisco?

De acordo com a legislação em vigor trata-se de ato obrigatório do contribuinte. Assim a comunicação deve ser realizada pela empresa que excedeu o limite de faturamento, nos prazos fixados em lei, sob pena de multa.

Assim, quando a exclusão do Simples Nacional se der por excesso de faturamento, cabe a pessoa jurídica solicitar ao fisco o desenquadramento do regime nos prazos fixados no artigo 30 da Lei Complementar nº 123/2006 e art.73 da Resolução CGSN nº 94/2011.

PGDAS-D – Faturamento

Quando da geração do PGDAS-D o fisco passa a ter conhecimento do faturamento da empresa. Mas este fato não isenta o contribuinte de solicitar / comunicar o fisco e informar o motivo da exclusão. Ou seja, neste caso, a exclusão não é automática, se não o fizer quando necessário ao consultar o status da empresa junto à Receita Federal ainda vai constar como empresa optante pelo Simples Nacional

Comunicação por excesso de faturamento

Portanto, no caso de a empresa auferir faturamento superior ao limite permitido em lei esta deve comunicar ao fisco a exclusão do regime.

Muitos pensam que não é necessário, que isto acontece automaticamente. Mas a obrigatoriedade consta da Lei Complementar nº 123/2006 e da Resolução CGSN nº 94/2011.

Implicações

Multa por falta de comunicação de exclusão

O contribuinte que deixar de comunicar a exclusão do Simples Nacional no prazo regulamentar, está sujeito à multa correspondente a 10% (dez por cento) do total dos impostos e contribuições devidos de conformidade com o Simples Nacional no mês que anteceder o início dos efeitos da exclusão, não inferior a R$ 200,00 (duzentos reais), conforme artigo 36 da Lei Complementar nº 123/2006 e artigo 90 da Resolução nº 94/2011.

Cadastro da empresa x Documentos Fiscais

A falta de comunicado de exclusão, causa confusão nas transações comerciais. Isto ocorre porque os documentos fiscais devem ser emitidos com base na tributação da empresa. Exemplo: quando o contribuinte do ICMS não comunica a exclusão do Simples Nacional (No sistema consta que é optante pelo Simples), ao tentar emitir Nota Fiscal Eletrônica (mod. 55) com destaque do ICMS, terá o arquivo rejeitado (dados incompatíveis com o cadastro da empresa).

Comunicação de exclusão fora do prazo

Evite transtornos, caso a empresa tenha ultrapassado o limite de faturamento permitido por Lei no ano de 2016, comunique a exclusão do regime por excesso de receita à Receita Federal, mesmo que isto implique em multa.

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Prazo para comunicar exclusão do Simples

Assim, a exclusão do Simples Nacional, mediante comunicação obrigatória da ME ou da EPP por ultrapassar o limite de faturamento deverá ser feita quando:

a) a receita bruta acumulada da empresa, ultrapassar, em cada ano-calendário, o limite de R$ 3.600.000,00, relativamente às operações no mercado interno, observando-se que, para fins da aferição desse limite, as receitas decorrentes da exportação de mercadorias, inclusive quando realizada por meio de comercial exportadora ou da sociedade de propósito específico, poderão ser computadas separadamente, ou seja, a ME ou EPP somente estará excluída do regime caso as receitas de exportação de mercadorias no ano-calendário excedam a R$ 3.600.000,00, hipótese em que a exclusão deverá ser comunicada:

a.1) até o último dia útil do mês subsequente à ultrapassagem em mais de 20% de um dos limites previstos na letra “a”, produzindo efeitos a partir do mês subsequente ao do excesso;

a.2) até o último dia útil do mês de janeiro do ano-calendário subsequente, na hipótese de não ter ultrapassado em mais de 20% um dos limites previstos na letra “a”, produzindo efeitos a partir do ano-calendário subsequente ao do excesso;

b) a receita bruta acumulada da empresa, no ano-calendário de início de atividade (no próprio ano-calendário) ultrapassar um dos limites previstos, observando-se que para cada um dos limites previstos na letra “a” será de R$ 300.000,00, multiplicados pelo número de meses compreendidos entre o início de atividade e o final do respectivo ano-calendário, consideradas as frações de meses como um mês inteiro, hipótese em que a exclusão deverá ser comunicada:

b.1) até o último dia útil do mês subsequente à ultrapassagem em mais de 20% de um dos limites previstos na letra “b”, produzindo efeitos retroativamente ao início de atividades;

b.2) até o último dia útil do mês de janeiro do ano-calendário subsequente, na hipótese de não ter ultrapassado em mais de 20% um dos limites previstos na letra “b”, produzindo efeitos a partir de 1º de janeiro do ano-calendário subsequente;

A comunicação para fins de exclusão do Simples Nacional será efetuada no Portal do Simples Nacional, em aplicativo próprio.

Novo limite do Simples

A Lei Complementar nº 155 de 2016 aumentou o limite anual de faturamento da empresa de pequeno porte de R$ 3,6 milhões para R$ 4,8 milhões.

O novo limite será válido a partir de 2018. Assim, a pessoa jurídica que em 2017 auferir receita bruta de até R$ 4,8 milhões poderá continuar no Simples ou aderir o regime em 2018.

Vale ressaltar, que a empresa com receita superior a R$ 3,6 milhões optante pelo Simples Nacional terá de pagar separadamente do Documento de Arrecadação do Simples Nacional – DAS o ISS e o ICMS, isto porque o novo limite não contempla estes impostos.

Base legal: Lei Complementar nº 123/2006, Lei Complementar nº 155/2016 e Resolução CGSN nº 94/2011

Fonte: Contábeis
Data: 16 de fevereiro de 2017
Acesso: 17 de fevereiro de 2017

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