A long-standing benefit, the possibility of double deduction of expenses with the PAT (Worker Food Program) for the purposes of calculating IRPJ and the respective additional amount, observing the deduction limit of 4% (four percent) of the tax due, suffered a severe blow when modified by Decree No. 10,854/2021.
The aforementioned Decree modified the deduction guaranteed by law, reducing it.
The good news for taxpayers is that the Judiciary has repeatedly rejected the modifications that reduced the PAT deduction, arguing that the limitations imposed by Decree No. 10,854/2021, which amends the provision of article 645, § 1, of Decree No. 9,580/2018 (RIR/18), violate the principle of strict legality, appearing to be an undue innovation in the legal order promoted by decree, by determining that the deductibility of the IRPJ tax benefit related to the PAT be limited according to the employee’s salary range; and that the ordinances and normative instructions that limit the value of the expenditure in the PAT go beyond the regulatory function by establishing a restriction not provided for by law for the enjoyment of the benefit, establishing the case law of the STJ in this sense, that the infra-legal norms that establish maximum costs of individual meals for workers for the purposes of calculating the PAT deduction violate the principles of strict legality and the hierarchy of norms, by exceeding their regulatory nature, in conflict with the provisions of Law No. 6,321/1976.
Despite the position that has been established in the Judiciary, the fact of life is that Decrees and Ordinances are still in full force, so that the possibility of deducting PAT twice can only be carried out based on a court decision.
Anyone who chooses to make the aforementioned deduction without the support of a court order will run the risk of being fined by the Tax Authorities, even though they may seek defense in court by filing an objection to any tax enforcement action.
