New food stamp limits are illegal, lawyers say

The new food stamp rules, which establish limits for companies to deduct amounts paid to their employees, are considered by lawyers to be illegal and contrary to the principles of the PAT (Worker’s Food Program).

According to decree 10,854, published in the Official Gazette on November 11 by President Jair Bolsonaro (no party), companies will have the right to deduct up to 4% of the amounts, but only from the benefits paid to workers earning up to five minimum wages ( BRL 5,500 in 2021). Currently, the percentage is 4%, but there is no such limitation on employee income.

“Today, the rule is that workers with higher incomes can be included in the PAT as long as [a empresa] ensure coverage of all workers. That [nova] This rule distorts the very nature of the program, which is to encourage companies to invest and guarantee quality food for their employees”, says Erika Regina Ferraciolli, tax lawyer at Orizzo Marques Advogados.

One more change is that the amount used in the payment of an employee’s food stamp so that the company can deduct from the IRPJ would be limited to a minimum wage (BRL 1,100 in 2021), that is, to be entitled to the tax incentive, the employer could spend up to R$1,100 in food benefits per employee. There is no limit today.

Mayara Mariano, a lawyer specializing in business law at Mariano Santana Sociedade de Advogados, says that, according to the decree, the only possibility for the PAT to encompass all workers in a company is through the provision of its own meal service or the food distribution through collective food suppliers.

“It is possible to consider that the decree extrapolated its role and is illegal, by instituting severe restrictions in the perspective of tax deduction and in the very reach of the public policy of feeding workers. This issue deserves further development”, evaluates lawyer Marco Aurélio Serau Junior, professor from UFPR (Federal University of Paraná).

The specialist highlights the importance of the PAT to improve the employees’ dietary perspective, “which gains relevance if we consider that this public policy is especially aimed at low-income workers”.

“In practice, companies tend to have a reduction in their tax benefit, which can discourage participation in the PAT”, says Geraldo Korpaliski Filho, partner in the labor area of ​​Souto Correa Advogados.

Still lacking regulation

In addition to violating the PAT principles, specialists point out that the article violates the principle of annual anticipation – a waiting period for the financial year following the publication of a text. It is worth remembering that, currently, the provisions of the decree are being regulated by the Ministry of Labor and Welfare.

“In line with the understanding of the STF [Supremo Tribunal Federal], the revocation or restriction of tax incentives that end up implying an increase in taxation must comply with the principle of priority. It seems to me that this is the context of the restrictions, that is, the application of the rules before 2022 violates the rule of antiquity”, explains Erika, from Orizzo Marques Advogados.

“O STJ [Superior Tribunal de Justiça] it has already analyzed situations in which changes were made to the tax benefit rules related to the PAT through a decree and understood that such changes would be illegal”, adds Augusto Bercht, partner in the tax area of ​​Souto Correa Advogados.

On the other hand, the labor lawyer Danilo Pieri Pereira, from Baraldi Memega Advogados, does not see illegality in this section of the decree. “In fact, the decree only regulates and updates the PAT, which already exists”, he defends.

In a statement, the Ministry of Labor and Welfare states that the program started to privilege the worker with lower income, “given that it limits the deduction in the corporate income tax of the cost of expenses with the program only to workers who earn up to five minimum wages”.

“The change also meets CGU audit report recommendations [Controladoria-Geral da União], that the allocation of the benefit presents distortions, with low attractiveness to the target audience, especially to lower-income workers”, says the statement.

Finally, the folder guarantees that the legality of the entire rule, including the article that discusses the limits for deduction linked to the PAT, was evaluated by the Attorney General’s Office of the National Treasury and by the Under-head of Legal Affairs of the Presidency of the Republic, not being pointed obstacles.