with the advent of Law No. 12,844 / 2013, which gave new wording to Article 7 of Law 12,546 / 2011, civil construction companies, as well as others, contributed to social security, until 31 December 2014 , on their gross revenue at the rate of 1% to 2%, thus changing the basis for the calculation of social security contributions, before incident on the total remuneration paid to employees.

This calculation base modification aimed to derive the payroll, for the purpose of promoting the activities of some sectors of the economy, as verified in the exposition of reasons nº 122.

However, companies that have reduced payroll, with few employees, were prejudiced by this new regime, considering that the modification of the calculation base for gross revenue, even if applied smaller aliquots, generated tribute to pay in value higher than due in the previous regime. Among the most impaired sectors are of civil construction, whereas, for the performance of such a activity, the outsourcing of labor is common.

Considering the outsourcing of much of the stages of the works, it ends that such companies do not have very high value of salaries, thus, the employer's social security contribution had its reduced impact base. On the other hand, many of these companies have high revenue, that is, the incidence of quoted tribute was replaced for a much higher base.

In such cases, it is verified that the purpose of the legislator was not achieved, considering that, instead of dishonoring, it ended upwards some companies, facing the increase of the tax burden resulting from the incidence of social security contribution on the basis of Calculation gross revenue. However, there is no doubt that if the legislator claim was to increase the collection, it would have simply occurred the increase in the relief of the social security contribution.

The conclusion that is arrived is that the taxation regime established by Law No. 12,546 / 2011, is therefore disproportionate and unreasonable to companies with few employees, considering that the elected environment (replacing the basis of incidence of social security contribution of salaries for gross revenue) is inadequate for promoting the end of the legislator (foster some sectors of the economy).

The new systematics, destart, ended up being beneficial to some, fulfilling its purpose, however, for others, ended up being extremely harmful, since it resulted in the majority of the tax burden, a result of this contrary to the objectified by law. Faced with such a scenario, Law No. 12,546 / 2011 ends up treating companies with reduced value of salaries in unequal way against the other companies included in the new system. Based on this, it is not reasonable for the application of the new taxation regime of the social security contribution to civil construction companies, facing the innocurrence of adequacy of the standard to the concrete case.

It is therefore, to companies to prove that they have been overlooked by this new regime. In turn, it is up to the judiciary to reduce the scope of the standard, through an analysis of each concrete case, if it explains effective Majoration of the tax burden, granting the right to maintain the taxation of the social security contribution on the salary sheet and, consequently, enabling the recovery of the amount paid by the largest contributor.