The federal deputy (PSOL-SP) presented this Wednesday (15) a representation at the TCE-SP (São Paulo State Audit Court) asking for an audit and precautionary suspension of restaurant accounts.
The 2012 decree provides that the amount corresponding to the contribution in bars, restaurants, hotels and similar establishments will be charged compulsorily, along with the bill. Tips up to 10% are exempt from ICMS. In the case of spontaneous tips, the tax is not charged.
The parliamentarian’s action at TCE-SP was filed after union entities reported that the São Paulo Finance Department began to reinforce inspections of establishments and fine those that did not collect ICMS on the tip percentage that exceeded 10%.
In her representation, Erika Hilton claims that the practice is illegal and socially unfair. She highlights that the tax is levied on amounts that do not belong to the establishments, but rather to the workers who receive the tips, a portion recognized by labor legislation as an integral part of the remuneration.
“The Tarcísio government is taxing the salaries of those who serve tables, wash glasses and carry trays. It is a charge without a legal basis, which reduces the earnings of those who need it most and increases inequality in the service sector”, says the deputy.
The action asks the TCE-SP to carry out a special audit at the Finance Department to determine how much the State has collected from charging ICMS on tips since the 2012 decree was issued. It also wants the precautionary suspension of new assessments and active debt registrations related to the topic until the investigation is completed.
The document argues that the government relies on an infralegal act to demand the tax, without there being a state law approved by the Legislative Assembly that authorizes this incidence. This, he continues, violates the principle of tax legality and violates the CLT (Consolidation of Labor Laws) article, which determines that the tip belongs to the employee and is not part of the company’s revenue.
The text filed by Erika Hilton highlights that the charge creates legal uncertainty, impacts small entrepreneurs and directly reduces the income of more than 300 thousand professionals in the food and hospitality sector in São Paulo, already affected by precariousness and informality.
“The measure contradicts Law 13,419/2017 (Tips Law), which sought to protect the transfer to employees, ensuring transparency and registration, and preventing the amount from being treated as business income”, indicates the text.
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