Tips Are Not Included in the SIMPLES NACIONAL Tax Base – IRPJ, CSLL, PIS, and COFINS

The Superior Court of Justice (STJ) has established consolidated jurisprudence stating that tips (gorjetas) do not form part of the Simples Nacional tax base for the purposes of IRPJ, CSLL, PIS, and COFINS.

The tax base for the Simples Nacional is the company's gross revenue, understood as the product of the sale of goods and services in own-account operations, the price of services rendered , and the result of third-party account operations, excluding cancelled sales and unconditional discounts granted. (Legal basis: Art. 3, § 1, of Supplementary Law No. 123, 2006).

However, the National Treasury (Fazenda Nacional) argues that tips, whether compulsory or voluntary, are part of the gross revenue that serves as the tax base for the Simples Nacional. (Guidance per Cosit Consultation Solutions No. 99, April 3, 2014, and No. 191, June 27, 2014). According to this view, Supplementary Law 123/2006, which governs the Simples Nacional, exhaustively listed the hypotheses for exclusion from the concept of gross revenue; therefore, the service charge should compose the establishment's gross revenue and be subject to taxation.

Nevertheless, the matter was submitted to the Judiciary, and the STJ formed a consolidated understanding that, according to Article 457, § 3, of the CLT (Consolidation of Labor Laws), tips—whether compulsory or included in the service bill—possess a salary nature. They compose the employee's remuneration and do not constitute income, profit, or gross revenue/turnover for the company. Consequently, tips represent only a cash inflow or an accounting transit to be passed on to the employee, implying no increase in the company's equity. For this reason, they should only be subject to taxes and contributions incident on wages. (AgRg in AgRg in Edcl in REsp 1.339.476/PE).

In view of this, the STJ holds that the requirement to collect PIS, COFINS, IRPJ, and CSLL on tips is illegitimate, and there is no basis for their inclusion in the tax base of the "Simples Nacional" tax regime.

Case Law Summary:

CIVIL PROCEDURAL AND TAX LAW. WRIT OF MANDAMUS. IRPJ, CSLL, PIS, AND COFINS. SIMPLES NACIONAL. TIPS. EXCLUSION FROM THE TAX BASE. CONCESSION OF THE WRIT. ALLEGATION OF VIOLATION OF ARTICLES 489 AND 1,022 OF THE CPC/2015. NON-EXISTENCE. LOWER COURT RULING ALIGNED WITH STJ JURISPRUDENCE. APPLICATION OF STJ PRECEDENT NO. 83.

I – Originally, this is a Writ of Mandamus filed by IHT Alimentos Eireli (New Hakata) against the Delegate of the Federal Revenue Service in Aracaju/SE, aiming to exclude the amounts received and passed on to employees as tips from the tax base of IRPJ, CSLL, PIS, and COFINS included in the Simples Nacional.

II – In the initial sentence, the writ was granted. In the Lower Court (Tribunal a quo), the sentence was upheld. This Court accepted the interlocutory appeal but denied the hearing of the special appeal. III – The Court of origin properly analyzed the controversy based on the following grounds: “Indeed, the matter has already been assessed by the courts, with the sub judice understanding being built that tips hold a legal nature of salary, upon which only taxes and contributions applied to salary portions should be levied, as they do not compose the gross revenue of companies. (Reference to STJ ruling...).” Thus, as stated in the aforementioned precedent, since it concerns funds of a salary nature, it is forbidden to grant extensive interpretation—pursuant to Art. 111, II, of the National Tax Code (CTN)—to allow the incidence of taxes and contributions other than those that must fall upon salary funds. IV – The Court of origin decided the matter in conformity with the jurisprudence of this Court. Therefore, STJ Precedent No. 83 applies, which states: “A special appeal based on divergence is not recognized when the Court's orientation is aligned with the appealed decision.” V – Internal interlocutory appeal denied. (AgInt in AREsp No. 2,579,690/SE, reporting Justice Francisco Falcão, Second Panel, adjudicated on 08/26/2024).

II – In the initial sentence, the writ was granted. In the Lower Court (Tribunal a quo), the sentence was upheld. This Court accepted the interlocutory appeal but denied the hearing of the special appeal. III – The Court of origin properly analyzed the controversy based on the following grounds: “Indeed, the matter has already been assessed by the courts, with the sub judice understanding being built that tips hold a legal nature of salary, upon which only taxes and contributions applied to salary portions should be levied, as they do not compose the gross revenue of companies. (Reference to STJ ruling...).” Thus, as stated in the aforementioned precedent, since it concerns funds of a salary nature, it is forbidden to grant extensive interpretation—pursuant to Art. 111, II, of the National Tax Code (CTN)—to allow the incidence of taxes and contributions other than those that must fall upon salary funds. IV – The Court of origin decided the matter in conformity with the jurisprudence of this Court. Therefore, STJ Precedent No. 83 applies, which states: “A special appeal based on divergence is not recognized when the Court's orientation is aligned with the appealed decision.” V – Internal interlocutory appeal denied. (AgInt in AREsp No. 2,579,690/SE, reporting Justice Francisco Falcão, Second Panel, adjudicated on 08/26/2024).

"CIVIL PROCEDURAL AND TAX LAW. PIS, COFINS, IRPJ, AND CSLL. TIPS. SALARY NATURE. NON-INCIDENCE. STJ PRECEDENT 83. APPLICATION.

Internal Interlocutory Appeal denied.” (AgInt in AREsp No. 2,223,882/SC, Reporting Justice Herman Benjamin, Second Panel, adjudicated on March 27, 2023, DJe of April 4, 2023.)

This involves an Internal Interlocutory Appeal against a decision that accepted the appeal but denied the hearing of the Special Appeal. No violation of Articles 489 and 1,022 of the CPC was found, and STJ Precedent 83 was applied.

At its origin, this is a Writ of Mandamus filed by the appellee to exclude service charges (tips) from the tax base of taxes collected under the Simples Nacional.

The jurisprudence of the Superior Court of Justice (STJ) is firm in the sense that the taxation of service charges is undue. Because they have a clear legal nature as salary income—regardless of whether they are paid voluntarily or compulsorily, under the strict terms of Art. 457 of the CLT—they cannot be included in the calculation base of federal taxes.

Tips cannot be included in the tax base of the Simples Nacional regime because their value does not effectively enter the taxpayer's equity, as it must be passed on to employees, as provided for in § 3 of Art. 457 of the CLT.