The Plenum of the Brazilian Supreme Court ("STF"), in a recent judgment, declared the constitutionality of the contribution allocated to the Brazilian Service of Support for Micro and Small Enterprises (Sebrae), subject to general repercussion recognized by the Court.
When judging the Extraordinary Appeal 635.682, filed by the taxpayer against the ruling of the Federal Regional Court of the 2nd Region, the Supreme Court, by majority vote, welcomed the understanding of the Reporting Justice Gilmar Mendes that the challenged decision is in accordance with the understanding of the Court, which has already recognized as unnecessary the editing of supplementary law to the institution of the Contribution to Sebrae, as well as its legal nature of contribution of intervention in the economic domain.
The company required the granting of the Extraordinary Appeal to relieve it from the payment of the Contribution and to recognize its right to offset the amounts unduly paid. The line of argument used in the Appeal thus summed up: I) the contribution had not been established by a supplementary law, but by an ordinary law, in violation of the Federal Constitution, II) the contribution is of intervention in the economic domain, therefore, only the beneficiary business categories should be charged, in which the company does not fall; and II) it would be inadequate the fitting of the contribution in the Article 240 of the Federal Constitution, as Sebrae is not part of the union system.
Thus, the referred appeal was grounded in the unconstitutionality of the following rules: Article 146, subsection II, paragraph "a", Article 195, paragraph 4 combined with article 154, paragraph I, all of the Federal Constitution.
Given this, as the judgment of the Supreme Court only examined the constitutionality of the institution of this contribution, we understand that it is still appropriate to question the constitutionality of such tax in light of the Constitutional Amendment No. 33/2001 ("EC n. 33/01").
That is because, as defined by the Supreme Court, such assessment has the nature of contribution of intervention in the economic domain, established on the basis of art. 149 of the Federal Constitution. However, with the enactment of EC n.33/01, the paragraph 2º, item III, subitem "a" was added to said article to provide that the contribution of intervention in the economic domain can only be levied on revenue, gross income or the value of the transaction and, in the case of imported goods, the customs value.
So, in this context, we understand that, since 2001, the Contribution to Sebrae, which is levied on the payroll, became unconstitutional due to the provisions of the Article 149, § 2º, III, "a", of the Federal Constitution, inserted by EC n. 33/01.
To strengthen our understanding in the sense that the question now deemed unconstitutional by the Supreme Court differs from supervening Contribution to Sebrae after EC n. 33/01, RE 603.624 is pending judgment by the Supreme Court, in which it was already recognized the General Repercussion of this matter, having also the opinion of the Public Prosecutor Office supporting the unconstitutionality of this Contribution after 2001.
So, to sum up, as the declaration of constitutionality made by the Supreme Court, at this time, has only attested that the institution of the contribution was lawful at its inception, we suggest discussing the assessment as mentioned above, for which we remain at our client's service.
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