In a session held on October 17, the 2nd Panel of the Superior Court of Justice (STJ) addressed the issue of including tips in the Simples Nacional tax base, a topic brought to the court through appeal AREsp 2,381,899. The National Treasury was the appealing party, contesting a second instance decision that had already excluded tips from taxation under the Simples Nacional regime.
During the argument, the National Treasury pointed to article 3 of Complementary Law 123/2006 , which establishes gross revenue as the calculation basis for the gambling data pakistan Simples Nacional. According to this law, gross revenue is defined as “the result of sales of goods and services, the value of services provided and the result of other commercial operations”, excluding only “cancelled transactions and unconditional discounts”.
However, when assessing the merits of the case, the Ministers concluded that tips, according to article 457, paragraph 3 of the Consolidation of Labor Laws (CLT), are considered wages. This makes them unsuitable for inclusion in the calculation basis of the Simples Nacional, as defined by paragraph 1 of article 3 of Complementary Law 123/2006.
Justice Herman Benjamin, the rapporteur of the case, based his decision on a previous vote of his own, which clarifies: “Paragraph 3 of article 457 of the CLT indicates that tips, whether mandatory or added to the service bill, are of a salary nature. Therefore, they are part of the employee’s remuneration, but do not constitute revenue, profit or income of the company. Thus, tips are merely a cash flow that must be passed on to the employee and do not contribute to the company’s assets. Therefore, they should only be subject to the taxes and contributions applicable to salaries.”
This decision is of great importance for companies that operate under the Simples Nacional regime, especially those in the service sector, where the practice of tipping is common. It is important to remember and take care of the way in which these revenues are received and accounted for so that they can be evidenced.
It is important to note that, according to the CLT, through changes promoted by Law 13,419 (Brazil, 2017) for companies that operate under the differentiated tax regime of Simples Nacional, up to 20% of the tip amount can be withheld to cover social, social security and labor charges. On the other hand, in companies that are subject to a traditional taxation model, this percentage can reach 33% for the same purposes.