STF avalia benefício para o Simples

STF avalia benefício para o Simples

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O Supremo Tribunal Federal (STF) suspendeu o julgamento em que decidirá se as empresas exportadoras, que optaram pelo Simples antes de 2006, têm direito à imunidade prevista na Constituição para as vendas ao exterior. Por enquanto, há três votos – um pela imunidade, um parcial e outro contrário. O julgamento foi suspenso por um pedido de vista do ministro Luiz Fux.

Atualmente, 82% das empresas brasileiras estão no Simples, segundo a coordenadora da atuação da Procuradoria-Geral da Fazenda Nacional (PGFN), Alexandra Carneiro. A discussão no julgamento, porém, tem abrangência limitada, pois desde 2006 o Simples Nacional, instituído pela Lei nº 123, já abrange a imunidade nas exportações.

Há apenas 17 casos aguardando o julgamento e, por tratar de lei que tem mais de dez anos, não é possível hoje que as empresas entrem com novas ações.

O caso concreto tem como base o Simples criado pela Lei nº 9.317, de 1996. O mecanismo permitia às empresas aderirem a um regime unificado de pagamento de tributos federais (IRPJ, CSLL, PIS, Cofins, IPI e contribuição previdenciária patronal). A alíquota reduzida, variava entre 3% e 12,5%, além de oferecer vantagens em procedimentos de licitações, por exemplo.

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No caso concreto, a empresa Brasília Pisos de Madeira aderiu ao sistema entre 2000 e 2003 e por atuar com exportação pediu a imunidade (PIS, Cofins, IPI, CSLL e contribuição patronal) alegando previsão constitucional para a imunidade em atividades de exportação. Para a PGFN, não seria possível acumular os benefícios.

O Tribunal Regional Federal (TRF) da 4ª Região havia decidido pela inviabilidade de se conjugar dois benefícios fiscais incompatíveis – a imunidade e o recolhimento de tributos pelo Simples -, criando-se um sistema híbrido.

No STF, o relator, ministro Marco Aurélio Mello afirmou que não há campo para incidência quando a Constituição prevê a imunidade. Esta e o Simples seriam diversos, segundo Mello, que aceitou o pedido da empresa. O ministro Edson Fachin o acompanhou parcialmente. “A imunidade estabelecida pela Constituição não pode ser excepcionada por lei infraconstitucional ou interpretação de lei infraconstitucional”. Fachin, porém, defendeu a manutenção da CSLL e a contribuição patronal.

Fux pediu vista por considerar que há precedentes semelhantes no STF. Apesar de não ter votado, Luís Roberto Barroso afirmou que manterá a decisão de 2ª instância.

Fonte: Valor Econômico
Data: 11 de novembro de 2016
Acesso: 11 de novembro de 2016

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