Article

_{DOI: 10.22167/2675-6528-20230043}
^{E&S 2023,4: e20230043}

_{Daniel Garcia Mascareñas; Roberta Vedana}

An agribusiness is one that transforms its own agricultural production. In the sugar-energy sector, for example, the agroindustrial legal entity plants, harvests, and transports the sugarcane to the industry, where it will be processed, transforming into an industrial product.

In other words, it is the legal entity that carries out agricultural production activities and industrializes the resulting product. It is the one that completes the entire economic cycle: from planting, through cultivation and harvesting, to its transformation into a final product. It is the one that prepares the input; it is the one that processes it and transforms it into an industrialized, mass-produced, identical, standardized object for final sale.

In this regard, the wording of Article 1 of Law No. 10.256 of September 9, 2001^[1] is noted, which, when dealing with the agro-industry, began to be integrated into Master Law No. 8.212/91 in Article 22-A^[2], stating that, from the moment the rural producer is a legal entity, with industrialization of its own production and/or acquired from third parties, the social contribution is levied on the gross revenue from the sale of production at a rate of 2.5%, replacing those provided for in items I and II of Article 22 of this same law (20% on the total remuneration).

As can also be perceived from the wording of this normative command, which states that for the characterization of an agro-industrial company, even if the legal entity acquires agricultural production from third parties for a portion of its industrialization process, it is essential that it also has its own production for its industrial purposes, under penalty of deviating from the legal concept of agro-industry. With this premise established, we will now ascertain the calculation basis to be determined by agro-industrial companies, as a social contribution in lieu of that collected on payroll.

The main problem in interpreting article 22-A of Law No. 8.212/91^[2] lies in defining the true scope of the generic expression “gross revenue from the sale of production”. That is, given the breadth and generality of the terms used by the legislator, distinct exegetical conclusions are possible around the same expression. This occurs because the norm first uses the term “own production” to conceptualize the activity of agro-industries in producing their own inputs for their industrial purposes.

At a later stage, however, the legal command uses the expression “commercialization of production” to delimit the tax base for the social contribution. It is on this second use of the expression that the greatest problems surrounding the interpretation of article 22-A^[2] are concentrated, since through it it is possible to understand that: (i) it refers to any economic activity carried out by the agro-industry; (ii) it refers to agro-industrial production, that is, to the industrialization of its own production or to the industrialization of its own production and production acquired from third parties; or (iii) it refers to the commercialization of any production, even if not industrialized and produced by the agro-industry.

The first interpretative line described above is apparently sustained and adopted by articles 201-A and 201-B of Decree No. 3.048/99^[3] (Regulation of Social Security), responsible for regulating and interpreting the provisions of Law No. 8.212/91^[2], among numerous other attributions. Article 201-A^[3] defines that agro-industry is the legal entity rural producer with economic activity of industrialization of its own production, or of its own production and acquired from third parties, and that the contribution is levied on the value of gross revenue originating from the commercialization of production, instead of those provided for in item I of article 201 and article 202 (included by Decree No. 4,032, of 2001)^[4].

Article 201-B, on the other hand, states that the provisions of the previous article also apply even if the agribusiness operates another autonomous economic activity, which may occur in the same or in another establishment (Decree No. 4,032, 2001) ^[4].

The sole paragraph of article 173 of the Normative Instruction of the Federal Revenue of Brazil (IN RFB) No. 971/09^[5] also points to this interpretation, demonstrating the tax authorities’ understanding of the matter, to the effect that all economic activity of the agro-industry, even if outside the legal concept that defines what an agro-industrial activity is, must compose the calculation base for the social security contribution.

When comparing the precepts of article 22-A of Law nº 8.212/91^[2] with those of Decree nº 3.048/91^[3], it is observed that the aforementioned Normative Instruction ended up extending the incidence of the social contribution to the gross revenue of agro-industrial companies in non-agro-industrial and commercial activities, which, at least expressly, is not provided for in that legal norm.

Decrees are a legitimate source of tax law – article 96 of the ^{National Tax Code} which, in addition to having the duty to faithfully regulate and interpret the law, can serve as a solution to materialize the legislator’s will when the interpretation of the norm is ambiguous or omitted. For this reason, even if not expressly stated in Law No. 8.212/91^[2], the interpretation/regulation given by article 201-B to the dictates of article 22-A of that mandate, regarding the calculation basis of the social security contribution due by agro-industrial companies, cannot simply be disregarded.

On the other hand, even taking into account the aforementioned considerations, it cannot be overlooked that article 201-B of Decree No. 3.048/99^[3] respects the principle of legality, enshrined in article 150, item I, of the Federal Constitution (CF) ^[7], and in articles 97, 99, 113, 114, and 142 of the National Tax Code (CTN) ^[6].

Indeed, although the CF and the CTN recognize the existence of decrees in the realm of tax legal rules, by their nature, they do not create or modify taxpayers’ rights, since any tax of a tributary nature can only be instituted and/or increased by a law in the strict sense, understood as laws, provisional measures and, in the past, decree-laws.

In this sense, if the exaction provided for in article 22-A^[2] only applies to revenues arising from the “commercialization of production”, economic activities carried out by agribusiness without a commercial nature are clearly outside the scope of the norm’s incidence, leading to an undue expansion of the tax calculation base without any legal basis.

This is the reason why, despite the presumption of validity surrounding the regulatory decree in question, there are also good arguments to support its illegality, which give voice to the other two interpretative lines regarding the calculation basis disciplined in article 22-A^[2].

Thus, the statement is justified when it is verified that agro-industries should not pay social security contributions on any revenue derived from their activities, but only “on the amount of gross revenue from the commercialization of production”, noting that the legislator really intended to limit the type of gross revenue on which the tax should fall.

If it were not so, and the legislator really wanted the social contribution of article 22-A^[2] to be levied on the gross revenue of all autonomous activities by agro-industries, it would be enough for them to suppress the expression “derived from the marketing of production” used in the main part of the mentioned provision, leaving the requirement of the contribution generically only on the gross revenue of the agro-industry as a whole.

The fact that paragraphs 2nd and 3rd of article 22-A of Law nº 8.212/91^[2] expressly exclude revenues from the provision of services to third parties from the calculation basis of the contribution provided for in the main part of article 22-A, applying the general rule provided for in article 22 to non-commercial revenues, could also assist any argument that the legislator himself recognized that other autonomous activities not defined in the main part of that provision require express legal provision to be taxed by the social security contribution.

Thus, it is understood that the arguments to sustain the illegality of the commandments contained in article 201-B of Decree No. 3.048/99^[3] are sound, considering the undue expansion of the calculation base for the social security contribution provided for in article 22-A, which included revenues not arising from the “commercialization of production” of the agro-industry in the tax calculation, in clear violation of the principle of tax legality provided for in paragraph 1 of article 97 of the National Tax Code^[6] and other applicable provisions.

Notwithstanding these facts, even assuming that only the social contribution will fall on the revenues from the “commercialization of production” by agro-industries, doubts about the real scope of the word “production” still persist, which result in the other two interpretative lines that permeate the norm, mentioned previously.

For example, the legal controversy still remains when it is found that the social contribution may fall solely on the revenues from the commercialization of what the agro-industrialist produces, using their own inputs or those acquired from third parties, or on the revenues from any product commercialized by the agro-industry, even if it has not produced and/or industrialized it.

In this sense, for the purpose of calculating the tax provided for in article 22-A of Law No. 8.212/91^[2], it can be understood that the word “production” refers to the typical activities of agro-industries and to what this type of company produces, that is, to the industrialization process of its own production or industrialization of its own and third-party acquired production. In other words, in this second hermeneutic line, the agro-industry’s social security contribution would only apply to revenues from the commercialization of its production.

Thus, the difficulty in asserting that this is the best exegesis on the legal command lies in the fact that the caput of article 22-A does not use the words “own” to determine that the social contribution would only fall on what was produced by the agro-industrial taxpayer itself. It is in this context that the third interpretative line on the norm emerges, endorsed by article 173 of IN RFB No. 971/2009^[5] mentioned earlier.

From the wording of the rule, the tax authority’s intention to tax any commercial activity of the agribusiness sector is clear, not limiting itself only to the commercial activity of the typical own production of this taxpayer. In this case, if there is an extreme adherence to the literal meaning of the provision, one can indeed understand that the use of the word “production”, in isolation, covers any and all products, even if not produced by the agribusiness sector. However, on this point, it is worth noting that this is not the first time that the expression “commercialization of production” has generated legal controversies in the legal system regarding the calculation of the tax base for a social contribution.

It is that paragraph 89 of article 195 of the CF, added by Constitutional Amendment (EC) No. 20, of December 15, 1998^[7], uses a calculation base very similar to that used in article 22-A of Law No. 8.212/91^[2], when determining that the rural producer, partner, sharecropper and tenant, the artisanal miner and fisherman, and their respective spouses, engaged in a family economy, without permanent employees, shall contribute to social security through the application of a rate on the commercialization of production, being entitled to the benefits contained in the law.

It is noted that the same doubts raised regarding the interpretation of article 22-A of Law nº 8.212/91^[2] concerning the calculation of the tax could also be applied to the aforementioned constitutional provision. However, both Law nº 8.540, of December 25, 1992^[8], Law nº 9.528, of December 10, 1997^[9], and more recently Law nº 10.256/01 ^[1], which amended article 25 of Law nº 8.212/91^[2], when providing for the collection of social security contributions from the special insured defined in paragraph 8 of article 195 of the CF^[7], determined that the tax would be levied on the gross revenue derived from the commercialization of their production.

It should be noted that the ordinary legislator himself understood that, in this hypothesis and considering the particularities of each situation, despite the ambiguity of the expression “commercialization of production”, the social contribution should only fall on the revenues from the commercialization of the taxpayer’s own production, instead of any and all products commercialized, even if not produced by the taxpayer.

It is thus seen that in a context where a social contribution is established for a type of contributor with specific requirements, and in which there is an express definition of what their production is, it also seems reasonable to interpret that the “commercialization of production” refers only to what is produced by them, not extending to products acquired from third parties.

In a precedent still pending definitive judgment by the higher courts — which was an isolated case until the year 2015 —, this interpretive duality present in the expression “commercialization of production”, provided for in article 22-A of Law nº 8.212/91^[2], was discussed, with the Federal Regional Court (TRF) of the 5th Region understanding the legality of the Normative Instruction that at the time regulated the matter, positioning itself so that the social security contribution of agro-industrial companies should be levied on gross revenue from the commercialization of their own production and that acquired from third parties, whether industrialized or not (case nº 200583000144561, Federal Judge José Maria Lucena, TRF5 – First Panel, DJ – Date: 31/10/2007 – Page: 960).

After years of silence from the courts, a new decision by the 2nd Federal Court of the Federal Justice of the Regional Federal Court of the 1st Region established a different precedent from the one previously judged in isolation in 2007. In the operative part of the referred judgment, the petitioning company’s request was granted, and the injunction was issued, in order to prevent the incidence of the social contribution contained in article 22-A of Law 8.212/91^[2] on its non-typical activities, in addition to recognizing the right to pay the social security contribution only on revenues derived from its own industrialization or own production and acquired from third parties (case nº 0002422-56.2015.4.01.4300 – 2nd Federal Court, Regional Federal Court of the First Region, Judicial Section of the State of Tocantins, Federal Judge Adelmar Aires Pimenta da Silva).

The aforementioned decision demonstrates a new positioning of the courts regarding the taxpayer’s right to collect the social contribution only on revenues derived from their own production. This becomes even more evident when excerpts from the said decision are observed, for example, when it states that the Union violated the fundamental guarantee of tax legality by expanding the incidence hypothesis in order to include other agro-industrial revenues. In this sense, article 201-B of Decree 3.048/99^[3] goes against the description of the contribution’s incidence hypothesis in article 22-A of the Cost Law^[2], as it expands the taxation to encompass non-typical activities of agro-industries.

Regarding non-typical agribusiness activities, these are not subject to the incidence of the contribution for social security, as provided for in Article 22-A of the Cost Law. The innovation intended by Article 201-B of Decree 3.048/99^[3] should not prevail, as it violates the constitutional guarantee of tax legality (Article 150, item I, of the CF)^[7]. In other words, the contribution to social security due by agribusinesses is restricted to their common activities, according to Article 22-A of Law 8.212/91^[2], wherein the tax authorities’ attempt to encompass other activities not contemplated in the text of the law is considered illegal. One of the most important limitations on the State’s power lies in the principle of tax legality, which has its roots in the Magna Carta of King John Lackland (England, 1215) ^[10]. Thus, the principle is part of Article 150, item I, of the Constitution of the Republic, which prohibits the imposition or increase of taxes if there is no law establishing it.

Notwithstanding this fact, the matter currently remains open before the Judiciary, with arguments to sustain both the legality and illegality of article 173 of the Normative Instruction of the Federal Revenue of Brazil nº 971/2009^[5], which expresses the tax authorities’ position on the calculation basis of the social contribution due by agro-industrial companies, regulated by article 22-A of Law nº 8.212/91^[2].

Thus, it is understood that the positioning that the social contribution provided for in the main part of article 22-A should only apply to revenues originating from the commercialization of the agribusiness production is plausible.

References

[1] Brasil. Lei nº 10.256, de 09 de setembro de 2001. Diário Oficial da União, 2001 julho 10. Disponível em: <https://www.planalto.gov.br/ccivil_03/leis/LEIS_2001/L10256.htm>. Acesso em: 11 out. 2023.

[2] Brasil. Lei nº 8.212, de 24 de julho de 1991. Diário Oficial da União, 1991 julho 25. Disponível em: < https://www.planalto.gov.br/ccivil_03/LEIS/L8212cons.htm >. Acesso em: 11 out. 2023.

[3] Brasil. Decreto nº 3.048, de 06 de maio de 1999. Diário Oficial da União, 1999 maio 07. Disponível em: < https://www.planalto.gov.br/ccivil_03/decreto/D3048.htm >. Acesso em: 11 out. 2023.

[4] Brasil. Decreto nº 4.032, de 26 de novembro de 2001. Diário Oficial da União, 2001 novembro 27. Disponível em: < https://www.planalto.gov.br/ccivil_03/decreto/2001/D4032.htm >. Acesso em: 11 out. 2023.

[5] Brasil. Instrução Normativa RFB nº 971, de 13 de novembro de 2009. Diário Oficial da União, 2009 novembro 17. Disponível em: <http://normas.receita.fazenda.gov.br/sijut2consulta/link.action?idAto=15937>. Acesso em: 11 out. 2023.

[6] Brasil. Lei nº 5.172, de 25 de outubro de 1966. Diário Oficial da União, 1966 outubro 27. Disponível em: < https://www.planalto.gov.br/ccivil_03/leis/l5172compilado.htm >. Acesso em: 11 out. 2023.

[7] Brasil. Constituição da República Federativa do Brasil de 1988, de 05 de outubro de 1988. Diário Oficial da União, 1988 outubro 05. Disponível em: <https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm>. Acesso em: 11 out. 2023.

[8]Brasil. Lei nº 8.540, de 22 de dezembro de 1992. Diário Oficial da União, 1992 dezembro 23. Disponível em: < https://www.planalto.gov.br/ccivil_03/leis/l8540.htm >. Acesso em: 11 out. 2023.

[9]Brasil. Lei nº 9.528, de 10 de dezembro de 1997. Diário Oficial da União, 1997 dezembro 11. Disponível em: < https://www.planalto.gov.br/ccivil_03/leis/l9528.htm >. Acesso em: 11 out. 2023.

[10] Brasil. A Magna Carta, de 15 de julho de 1215. Disponível em: <https://www2.senado.leg.br/bdsf/bitstream/handle/id/182020/000113791.pdf >. Acesso em: 11 out. 2023.

Como citar

Mascareñas D. G.; Vedana R. Contribuição social previdenciária sobre as atividades agroindustriais. Revista E&S. 2023; 4: e20230043.

Sobre os autores

Daniel Garcia Mascareñas, Gerente Executivo Tributário. Rua Castro Alves, 113, ap.2, CEP: 11040-191. Bairro: Boqueirão, Santos, Brasil.

Roberta Vedana – PhD candidate in Applied Economics from ESALQ/USP, Piracicaba, Brazil.

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