Several legislative changes and judicial discussions marked the substitution system for the collection of Social Security Contributions on Gross Revenue (CPRB), an alternative created by Law No. 12,546/11 to the traditional collection of social security contributions on payroll (article 22 of Law No. 8,212/91) - the so-called payroll exemption.

The most recent amendment that evokes questions by taxpayers concerns the modifications imposed by Provisional Presidential Decree No. 774, published on March 30, 2017 (MP 774/17) and effective as of next July 1.

In addition to modifying the applicable rates, several sectors, such as transportation, hotels, information technology, call centers, food, pharmaceuticals, textiles, and footwear, among others, were abruptly excluded from the system of Law 12,546/11.

Since 2015, due to the amendments to Law No. 1361/15, the CPRB system is optional. Taxpayers whose activities and products are listed in the law may exercise, in January of each year, the irreversible option to follow the system to be adopted for the entire calendar year.

In MP 774/17, no provision regulates the treatment of companies that, under the provisions of paragraph 13 of article 9 of Law No. 12,546/11, exercised the right to irreversibly exempt the payroll for the 2017 calendar year and have now been excluded.

In this context, we believe that exclusion from the CPRB system during the calendar year 2017 is questionable due to the principles of legal certainty, accrued rights, and good faith of taxpayers who planned economic activities, costs, and revenue projections based on the legitimate expectation that the system chosen would last until the end of the year, and that it would be an irreversible choice.

We are aware of court decisions favorable to companies that legitimately exercised this option in January of this year and that ensure their maintenance in the CPRB system until the end of 2017.