A tributação de dividendos sob a perspectiva das empresas optantes pelo Simples Nacional: análise prática e constitucional da Lei 15.270/2025 à luz da Lei Complementar 123/2006

Abstract

This study examined the reintroduction of dividend taxation in Brazil from the perspective of microenterprises and small businesses operating under the Simples Nacional tax regime, with particular emphasis on the amendments introduced by Law No. 15,270/2025, which modified Laws No. 9,250 of December 26, 1995, and No. 9,249 of December 26, 1995, to establish a reduction in personal income tax due on monthly and annual tax bases and to introduce a minimum tax for high-income individuals. The research began with a historical reconstruction of the exemption for profits and dividends established by Law No. 9,249/1995, followed by an analysis of the constitutional foundations of the preferential legal framework granted to microenterprises and small businesses, particularly in light of Articles 146, III, "d", and 179 of the Federal Constitution, as well as the protective provisions set forth in Complementary Law No. 123/2006. The study investigated whether the new system of withholding income tax on dividends, especially that established by Article 6-A of Law No. 9,250/1995, as amended by Law No. 15,270/2025, may be validly applied to taxpayers under the Simples Nacional regime without violating the constitutional requirement that such matters be regulated by complementary law and without indirectly undermining the differentiated legal treatment constitutionally guaranteed to small businesses. In addition to the doctrinal analysis, the study addressed the tax and operational impacts of the new rules, including their effects on profit distributions, partners' compensation (pro labore), cash flow, shareholders' overall income, and the risk of double economic taxation. From a complementary perspective, the research also examined criticisms directed at the fixed-rate withholding model, including in the context of the presumed profit (lucro presumido) and actual profit (lucro real) tax regimes, due to tensions with the constitutional principles of ability to pay, tax progressivity, and proportionality, particularly in light of the debate surrounding the so- called "cliff effect." Finally, the study analyzed the recent judicial review of the matter, with particular emphasis on Direct Actions of Unconstitutionality (ADIs) Nos. 7912, 7914, and 7917, as well as judicial decisions favorable to taxpayers, including law firms operating under the Simples Nacional regime. It concluded that there are sound legal grounds supporting the full or partial inapplicability of Law No. 15,270/2025 to profit distributions made by companies subject to the preferential Simples Nacional tax regime.