A pejotização no direito tributário: os critérios de fato e de direito para a inoponibilidade perante o Fisco

Abstract

The use of legal entities in working relationships (pejotização) is a phenomenon whereby workers incorporate companies to provide highly personal services, which may be lawful or unlawful. It is not a recent phenomenon, but it has been driven by the enactment of various legal provisions over the past twenty years. In addition to labor-related repercussions, it produces significant tax consequences, insofar as it generates considerable tax savings for both the service provider and the service recipient. Consequently, the topic has been highly litigated, with no consensus in the legal doctrine or case law regarding the factual and legal criteria that would delimit the lawfulness of pejotização. In this context, the present study aims to identify the most appropriate factual and legal criteria for the use of legal entities in working relationships to be considered unenforceable against the Tax Authorities. To this end, after outlining the general panorama of the topic in Brazil, defining the concept of pejotização, and presenting the positions adopted in the case law of the main authorities competent to adjudicate the matter, the most suitable factual and legal criteria for the tax enforceability of pejotização are demonstrated. Regarding the legal criteria, the analysis is based on Article 129 of Law number 11,196/2005, given the central role it plays in debates on the subject. This provision, of interpretative nature, states that when an intellectual service, even if highly personal, is rendered through a legal entity, the tax legislation applicable to legal entities shall, in principle, apply. This rejects the interpretation that the intellectual nature of the services, their highly personal character, or the assignment of specific obligations to partners or employees would constitute grounds for disregarding these entities by the Tax Authorities. However, this provision must be interpreted systematically, and the tax unenforceability of entities established to provide highly personal services is limited by the pathologies that constrain tax planning, which, under the current legal framework, consist of simulation. Accordingly, simulation, in its causal concept, is the most appropriate legal criterion for the tax unenforceability of pejotização. This pathology may be recognized administratively by the Tax Authorities, regardless of the regulation of the sole paragraph of Article 116 of the National Tax Code (CTN), and even if it implies the recognition of an employment relationship or the disregard of a legal entity. Regarding factual criteria, the existence of an employment relationship in the actual interaction between the service provider and the recipient, or the use of a legal entity without economic substance to provide the services, constitutes the two alternative factual criteria for the tax unenforceability of pejotização, as their presence would qualify it as simulated. Therefore, the provision of highly personal services through a legal entity may only be disregarded by the Tax Authorities if simulation is established, evidenced either by the existence of an employment relationship or by the use of a legal entity lacking economic substance.