By Ronald Sharp Jr and Fabrício de Souza Oliveira
Published in Migalhas Newsletter No. 6,424, August 31, 2026
There are decisions that resolve a tax controversy and, incidentally, offer a lesson in Business Law. The judgment of Topic 1,228 by the 1st Section of the Superior Court of Justice (STJ) is one of them.
The question submitted to the Court was fiscal: is the holder of an extrajudicial office required to pay the education salary contribution? Behind it, however, was a question of a different nature, and far more interesting: does the holder of a notary's office engage in business activity?
The Superior Court of Justice (STJ) responded that it was not. And the chosen justification – article 966 of the Civil Code, and not just tax legislation – transforms a precedent on revenue collection into a precedent on concepts.
Economic activity should not be confused with business activity.
The first lesson is also the most basic, and therefore the most forgotten: the fact that an activity has economic content, generates revenue, organizes factors of production, and employs people does not, in itself, mean that we are dealing with a company.
Article 966 of the Brazilian Civil Code defines an entrepreneur as someone who professionally engages in organized economic activity for the production or circulation of goods or services. There are four cumulative elements – professionalism, profitability, organization, and market focus – not a list from which one can choose two.
Notarial and registry activities fulfill some of these requirements. However, it is a public service exercised in a private capacity by delegation, under the terms of Article 236 of the Constitution, subject to the specific regime of Law 8.935/1994. The rapporteur of the repetitive appeal, Minister Teodoro Silva Santos, accurately summarized the idea by stating that the holder of the registry office acts as an extension of the state – and that this condition keeps him outside the corporate legal regime.
Organizing, in this context, is not about undertaking a project. It's about providing a service.
An organization, in isolation, is not a business element.
One might object that a registry office has a structure, employees, equipment, technology, suppliers, financial management, and cost control. Wouldn't that be a typical business organization?
The Civil Code itself has already answered this. The sole paragraph of Article 966 excludes from the concept of entrepreneur anyone who practices an intellectual profession of a scientific, literary, or artistic nature – and it does so with an express caveat: even with the assistance of helpers or collaborators. The existence of a subordinate team was anticipated and neutralized by the legislator. Having employees has never, by itself, been an indicator of entrepreneurship.
And the notary is, by legal definition, a legal professional endowed with public faith, according to article 3 of law 8.935/1994.
The second part of the argument remains, which is the true counter-argument and deserves direct confrontation: the intellectual professional will be considered an entrepreneur if the exercise of the profession constitutes an element of a business. The hypothesis is that of absorption – intellectual activity ceases to be the center and becomes one among several factors organized by a structure that transcends it.
This is not what happens in extrajudicial services, for two reasons.
The first is the personal nature of the delegation. It stems from approval in a public competition, is assigned to a specific individual, and cannot be transferred, ceded, or inherited. Public trust does not detach from the holder to be exercised by the organization; the structure serves the delegate, not the other way around. Therefore, precisely what the reservation presupposes is lacking.
The second is the absence of organizational autonomy. The entrepreneur chooses the object, the price, the market, and the moment to enter and exit it. The notary public does not choose any of these: jurisdiction is defined by law, remuneration is fixed by a fee schedule, the area is territorially delimited, and entry depends on a competitive examination. An activity whose essential elements are all heteronomously defined can hardly be described as organized by the agent for the production or circulation of services in the market.
There is structure, therefore. What is lacking is the freedom to organize it – and it is this freedom that defines the entrepreneur.
The distinction between business activity and the activity carried out by extrajudicial services can be better understood from this idea of organizational autonomy. In Ronald Coase's economic conception, the firm is characterized by the existence of a sphere of conscious coordination in which the entrepreneur, to a certain extent, replaces the price mechanism with the deliberate direction of the factors of production. Outside the firm, the allocation of resources occurs primarily through market transactions; within it, on the contrary, certain decisions are made by the entrepreneur-coordinator, who is responsible for organizing and directing the resources employed in productive activity. In this sense, Coase even identifies the replacement of the price mechanism by the coordination exercised by the entrepreneur as a distinctive feature of the firm.
This formulation allows us to understand that business organization is not simply a material structure composed of people, assets, and technology. A company presupposes an autonomous center of economic decisions. The entrepreneur defines which activities will be developed, which resources will be mobilized, which transactions will be internalized, the scale at which the organization will operate, and to what extent it will be economically advantageous to expand or reduce it. In Coase's formulation, the firm consists precisely of the system of relationships that arises when the direction of resources comes to depend on the entrepreneur, with its expansion determined by the incorporation of new transactions into the sphere of business coordination. Organizational power, therefore, involves not only the internal management of the means employed but also the capacity to determine the economic contours of the activity itself.
It is precisely in this aspect that a structural difference between a company and an extrajudicial service becomes evident. The entrepreneur operates, in principle, within a space of economic autonomy in which they are responsible for choosing the object of their activity, establishing their strategy, selecting the market in which they intend to operate, defining their prices according to existing economic conditions, deciding on the expansion or reduction of their activity and, subject to general legal limitations, determining when to enter or withdraw from the market. These elements constitute the very freedom of business organization.
In contrast, in notarial and registry activities, the essential elements of the work are predominantly heteronomously defined by the legal system. The holder of the office does not freely choose the duties they wish to perform, as their competence derives from the law and the delegation received. They do not autonomously set the price of services, since remuneration is based on a legal fee schedule. They do not select the territory in which they wish to compete, because their work is bound to the normatively defined jurisdiction. Nor do they freely enter the activity, as access to the position depends on a public examination and state delegation. In other words, decisions that, in the business environment, constitute typical manifestations of the autonomy of the economic agent are, in the context of extrajudicial offices, predetermined by rules external to the holder.
This is not to deny that the delegate has significant administrative organizational power. Clearly, it is their responsibility to materially structure the office, hire and manage staff, acquire equipment, choose technological solutions, distribute internal functions, and administer the resources necessary for the proper provision of services. This autonomy, however, is predominantly managerial in nature. It applies to the means used to execute an activity whose fundamental legal configuration has already been established by the State. Therefore, there is a difference between managing an organization and exercising business autonomy over the economic structure of the activity itself.
Coase's theory helps to clarify this distinction. By examining the internal relations within a firm, the author observes that the entrepreneur receives, within certain limits, the power to direct the factors of production, while retaining the concrete choice regarding their use. Entrepreneurial activity thus presupposes a significant sphere of residual decisions in the hands of the organizer. In extrajudicial services, however, the intensity of the normative discipline reaches precisely several of the constitutive elements of the activity: object, remuneration, territorial scope, conditions of entry, and service provision regime. The decision-making space reserved for the holder focuses primarily on the manner of service execution, and not on the economic definition of the service that will be placed on the market.
For this reason, the mere presence of capital, labor, technology, and administrative structure does not seem sufficient to equate an extrajudicial service with a business. The expression "organized economic activity," when taken in its economic-functional dimension, presupposes more than the material coordination of productive factors: it presupposes that this organization results from fundamental economic choices attributed to the agent himself. When the essential elements of the activity are heteronomously defined by the State, the component of autonomy that characterizes business organization is precisely weakened. The holder of the service organizes the means necessary to fulfill a legally delimited function, but does not have, strictly speaking, the same power of economic shaping that characterizes the entrepreneur in the market.
A CNPJ (Brazilian tax ID) does not create a company.
The Superior Court of Justice (STJ) also dismissed the argument that mandatory registration of the registry office in the National Registry of Legal Entities (CNPJ) would be sufficient to characterize it as a business activity. The assignment of a CNPJ does not alter the legal nature of the holder, who remains a natural person, nor does it create a sole proprietorship or an autonomous legal entity.
It's worth emphasizing, because the confusion is common in practice: CNPJ is a registration, not a legal entity. It serves a fiscal and identification function, and covers unincorporated entities of all kinds – condominiums, consortia, funds, joint venture companies. The equation "CNPJ = legal entity = company" is wrong in both equal parts.
Equating them has limits – and those limits are inherent to their very purpose.
The National Treasury argued that notary office holders, although individuals, are considered equivalent to companies for certain social security purposes, as per the sole paragraph of article 15 of Law 8.212/1991.
The Court refused to transfer the equivalence from one regime to another. Equivalence is a legislative technique, and a finalistic technique: it applies to the field in which it was established and does not extend by analogy to other regimes. A person can be equated to a company for a certain legal purpose without becoming a businessperson for all legal purposes.
Here, it is advisable to avoid excessive interpretation of the precedent. The Superior Court of Justice (STJ) did not declare notary offices immune to taxation, nor did it deny the economic dimension of the activity. The Supreme Federal Court (STF), when ruling against Direct Action of Unconstitutionality (ADIn) 3.089/DF in 2008, had already declared the application of the Service Tax (ISS) to notarial and registry services constitutional, precisely because it recognized the delegate's own contributory capacity. The two rulings coexist without contradiction – and it is this coexistence that clearly reveals the thesis: the office has taxable economic content, but the holder is not a businessperson.
Denying the entrepreneurial nature of economic activity is not the same as denying its existence.
What changes when the subject is not a business owner?
This point often goes unnoticed because the discussion originated in the tax field. However, the qualification has repercussions far beyond the contribution being discussed.
The provisions of Law 11.101/05 do not apply: there is no bankruptcy or judicial reorganization of extrajudicial services, because the regime is directed at entrepreneurs and business corporations. There is no establishment in the sense of article 1.142 of the Civil Code, and therefore there is no transfer, no assignment of assets, nor negotiable goodwill – the material assets of the service do not circulate, and the delegation is extinguished upon the death or retirement of the holder, according to Law 8.935/1994. There is no business name, registration with the Commercial Registry, nor business succession to be transmitted. And civil liability follows its own discipline, that of article 22 of Law 8.935/1994, as amended by Law 13.286/16.
None of this is a tax consequence. It's a conceptual consequence.
The parallel of civil associations
This consequence is not theoretical, and another area of jurisprudence from the Superior Court of Justice (STJ) has been demonstrating this – with a considerably higher social cost.
In November 2025, the 4th panel unanimously ruled on REsp 2.008.646/RS, reported by Minister Raúl Araújo, and denied the civil associations of the Methodist Group – educational institutions with thousands of employees and tens of thousands of students – the legitimacy to request judicial reorganization. The decision aligned the 4th panel with the understanding already established by the 3rd panel in REsp 2.026.250 and REsp 2.175.284: Law 11.101/05 is directed at entrepreneurs and business corporations, and its scope cannot be broadened by extensive interpretation.
The argument put forward by the companies undergoing judicial reorganization is precisely the one that Corporate Law requires us to examine: the absence of a profit motive would not preclude the existence of a business activity, provided there was wealth generation and reinvestment of surpluses, so that an association that met the requirements of Article 966 of the Civil Code should have access to the judicial reorganization regime. The argument is serious, and the Public Prosecutor's Office even supported it. Nevertheless, it did not prevail.
The same line of reasoning prevailed as would later be seen in Topic 1.228: the economic relevance of the activity does not determine the legal regime of the entity that carries it out. And the Court added a concern for systemic coherence – entities that enjoy preferential tax treatment precisely because of their non-business nature cannot, at the same time, invoke the instruments reserved for those subject to the burden of the business regime. Choosing the statute means adopting the whole.
The exceptions, moreover, prove the rule. The access of medical cooperatives and football clubs to insolvency mechanisms came from an express legislative choice, not from jurisprudential construction. Where the legislator wanted to equate, it equated – and, once again, equated for a specific purpose.
The parallel with notary offices is instructive because of the contrast. Extrajudicial services and educational associations have nothing in common regarding their origin, function, or legal regime. But both handle significant resources, employ people, hire, and incur debt – and both remain outside the business regime, because legal qualification is not deduced from economic size.
However, there is a relevant difference regarding the consequences, and it deserves to be noted. In the case of notary offices, the exclusion from the bankruptcy regime does not leave a void: the delegation is personal, revocable, and overseen by the Judiciary, and the insolvency of the holder is resolved through the mechanisms of the administrative regime to which they are subject. In the case of economically active civil associations, however, the effect is a real gap – thousands of entities without any legal means of reorganizing liabilities, which tends to lead to the closure of activities. Acknowledging that the classification is technically correct does not prevent us from noting that the solution here depends on the legislator, not the interpreter.
It is the interpreter's role to qualify. To equate is the task of the legislator.
The employer that is not a company
There is a labor law development that, in my view, is the most elegant of all – and which confirms the reasoning of the Superior Court of Justice (STJ) based on a much older legal instrument.
Article 2 of the CLT (Consolidation of Labor Laws) defines the employer as the company that assumes the risks of the economic activity and hires, pays wages to, and directs the personal provision of services. If the definition stopped there, the holder of a notary's office, who hires under the CLT regime and in his own name, would be excluded from it. Paragraph 1 resolves the problem by analogy, encompassing liberal professionals and non-profit entities that hire employees – and it does so with a revealing clause: for the exclusive purposes of the employment relationship.
In other words, the CLT (Brazilian Labor Code) already knew, since 1943, that there are employers who are not companies, and it took care to delimit the scope of the equivalence it created. What the STJ (Superior Court of Justice) decided in 2026 is the same lesson, transposed to the tax field. Those who are equated for one purpose do not become entrepreneurs for all purposes.
A vocabulary that remains indispensable.
The trial allows for the recovery of distinctions that practice often dissolves:
company: the organized economic activity, professionally carried out for the production or circulation of goods or services;
entrepreneur: the individual, whether a natural or legal person, who carries out this activity;
Business corporation: one of the legal forms through which the activity can be carried out;
Establishment: the complex of assets organized for the operation of the business;
legal entity: a legal entity that can, among other possibilities, be a businessperson.
They are not synonyms, and the case of notary offices demonstrates the practical cost of treating them as if they were.
In legal practice, the reasoning often goes in the wrong direction: if there is an organization, then there is a company; if there is a CNPJ (Brazilian tax ID), then there is a legal entity; if there are employees, then there is a business owner.
The correct order is the reverse. First, the legal nature of the activity is identified. Then, the presence of the elements that characterize the company and the entrepreneur is verified. Only then is the applicable regime defined.
Theme 1.228, therefore, is more than a favorable tax precedent for extrajudicial services. It is a reaffirmation of the conceptual autonomy of Business Law – and economic reality, however eloquent it may be, does not dispense with legal qualification.
With each new form of economic organization that emerges, the first question remains the same:
Are we dealing with a company, or merely an economic activity subject to its own legal regime?
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References
COASE, Ronald H. The nature of the firm (1937). The nature of the firm: origins, evolution, and development, 1993, 18-33.
STJ, First Section, Repetitive Theme 1.228 — REsp 2.068.273/RS, REsp 2.068.698/PR and REsp 2.068.695/RS, Rapporteur Justice Teodoro Silva Santos, judgment concluded in August 2026, by majority vote. Established thesis: notaries and registry officers are not contributors to the education salary contribution, provided for in art. 212, § 5, of the Federal Constitution and instituted by art. 15 of Law No. 9.424/1996.
STF, Pleno, ADI 3.089/DF, j. 13.02.2008 (constitutionality of the application of ISS tax to notarial and registry services).
STJ, Fourth Panel, REsp 2.008.646/RS, Rapporteur Justice Raúl Araújo, judgment of November 18, 2025, unanimous (lack of standing of civil associations to request judicial reorganization). Similarly, Third Panel, REsp 2.026.250 and REsp 2.175.284.
Civil Code, art. 966 and sole paragraph; arts. 1,142 and 1,144 to 1,146. Federal Constitution, arts. 212, § 5, and 236. Law No. 8,935/1994; Law No. 8,212/1991, art. 15, sole paragraph; Law No. 11,101/2005, art. 1; CLT, art. 2 and § 1.
1 COASE, Ronald H. The nature of the firm (1937). The nature of the firm: origins, evolution, and development, 1993, 18-33.
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