Will restaurants get back taxes paid on tips? Understand

Abrasel-PR (Brazilian Association of Bars and Restaurants) obtained yet another decision in favor of the action, filed in May this year, which asks for the recognition of the right of establishments not to collect federal taxes on the amounts of service fees, or tips. The entity also requests the refund of amounts paid in the last five years from the filing of the action.

There were five lawsuits filed in the state, one for each region. Of them, only the one in Curitiba does not yet have a defined sentence. Maringá, Ponta Grossa and Cascavel had already obtained favorable sentences in the first instance. The most recent was Londrina. The next step is processing in the TRF-4 (second instance), the result of which should be published in the first quarter of 2024. Afterwards, the action goes to the Superior Court of Justice (STJ, third instance), with the expectation of a definition between the end next year and early 2025.

According to Guilherme Moro, Abrasel’s lawyer, when defined in the third instance, the decision will only cover establishments associated with the Paraná section. “The decision even allows bars and restaurants that become members in the future, after the final decision, to also benefit from the favorable decision, if confirmed”, he explains.

Tip: labor and tax aspects

In conversation with businesspeople from the sector at Abrasel’s last meeting of the year, at the beginning of this month, Moro recalled that two main aspects affect tipping: one of them is labor. Article 457 of the CLT regulates the modality, and in this scenario it is discussed whether the tip is the employee’s salary. Law 13,419 of 2017 defines it as not being the employers’ own revenue, but intended for workers and must be distributed “according to costing and apportionment criteria defined in a convention or collective bargaining agreement”.

Regarding the tax aspect, the discussion is whether the service fee is the company’s revenue, as it appears on the invoice, once the customer pays the bill, the amount enters the company’s coffers. The Treasury understands that this is revenue, and that, therefore, it needs to be taxed. “The food sector understands that this is not the case”, he informed.

In the favorable sentences, the Court understood that compulsory or voluntary service fees do not constitute profit or revenue and that they do not form part of the company’s assets, highlights Moro. This gives restaurants associated with Abrasel the right not to pay Income Tax, PIS, Cofins and social contribution on them. Whether they opt for real profit, presumed profit or part of Simples Nacional.

As a result, the judge declared that restaurants associated with Abrasel have the right to recover the entire amount paid in taxes related to tips in the last five years. “If the decision is confirmed, the restaurants will have a credit, they will be able to recover the amounts paid in cash or offset against other federal taxes”, details the lawyer.

There are already favorable opinions in both the first, second and third instances. Which offers a horizon of optimism for the association. STJ’s decision from April this year, recalls Moro, recognizes that the service charge and tip should not be taxed. “There are no guarantees. We have to wait for the Abrasel process, but the outlook is good”, he projects.

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