Upon the enactment of Law 9876/99, of November 26, 1999, a part of the system of social contribution payable by companies was modified, and one of the contributions payable by companies was fixed at 15% of the invoice for services rendered by work cooperatives:
"Art. 22. The contribution payable by the company,
earmarked to the Social Security, in addition to provisions in art.
23, corresponds to: (...)
IV – fifteen percent of the gross amount of the bill of services [nota fiscal] or invoice for services rendered to the company by the members of the work cooperatives."
However, it seems that the requirement for the engaging companies to pay a 15% contribution on the invoices for services from work cooperatives is totally unconstitutional, to the extent that:
- the Federal Constitution bars any requirement for payment of two social security contributions with identical calculation basis, i.e., levied on billings;
- a new social security contribution can be created only through a Supplementary Law.
This issue has been discussed in the Judiciary Branch since 2000, and there are several decisions unfavorable and some favorable to the companies rendered by the Federal Regional Courts.
Anyhow, that is a constitutional issue, and it is up to the Federal Supreme Court to give the last word on the matter, which is still to occur (we are referring to a Direct Action for Unconstitutionality ─ ADIN 2594-5/600, filed by the National Confederation of the Industries – CNI, which is yet to be judged by the Federal Supreme Court).
As to this aspect, it is important to mention that, although the thesis based on the two premises above (two taxes on the same calculation basis and need for a supplementary law) is quite consistent, many times the Brazilian Superior Courts pass judgment of political nature, ignoring in part the matter of law, and show the trend to observe the financial impact that will be caused to the Federal Government in case of the taxpayers' victory.
Notwithstanding, it is important to point out that an opinion that the action is grounded and that art. 22, IV, of Law no. 8212/91 is unconstitutional was issued by the Federal Attorney-General and attached to the ADIN on December 19, 2006.
In view of the current status of the discussion over the matter, it is still possible and recommendable that the companies seek judicial authorization not to pay for contributions related to the work cooperatives.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.