Law No. 12,546 / 2011 determined the replacement of the 20% incident employment contribution on the remuneration paid to the insured employees, individuals and individual contributors, by the social contribution on gross revenue earned by the companies of certain segments.

By establishing that the basis for the calculation of the substitutional social security contribution would be gross revenue, the law determined that only could be excluded: (i) gross exports revenue; (ii) gross revenue resulting from international cargo transport; (iii) canceled sales and unconditional discounts granted; (iv) IPI, if included in gross revenue; and (v) ICMS, when charged by the seller of goods or service provider in the condition of tax substitute.

It is important to note that Law 12,546 / 2011 did not establish a specific conceptualization for the expression "gross revenue", so that the Federal Revenue has published the normative opinion 03/2012 determining that the concept of gross revenue used for purposes definition of the basis of calculation of the contribution to PIS and COFINS, which, in practical terms, means that the federal fisco understands due to the inclusion of ISS and ICMS on the calculation basis of the new contribution.

In view of this context, taxpayers aiming to reduce the tax burden related to the new form of collection of the social security contribution will have to seek judgment to exclude ICMS and ISS.