There are decisions that resolve a tax dispute and, in the process, offer a lesson in Business Law. The ruling on Repetitive Appeal Theme 1.228 by the 1st Section of the STJ is one of them.
The question submitted to the Court was a tax one: must the holder of a notary office pay the salário-educação contribution (a payroll contribution that funds basic education)? Behind it, however, lay a question of a different nature—and a far more interesting one: does the head of a notary public office engage in business activities?
The STJ answered no. And the reasoning it chose—Article 966 of the Civil Code, rather than merely tax legislation—transforms a precedent on tax collection into a precedent on legal concepts.
Economic activity should not be confused with business activity
The first lesson is also the most basic—and for that very reason, the most often overlooked: the fact that an activity has economic content, generates revenue, organizes factors of production, and employs people does not, in and of itself, mean that we are dealing with a business.
Article 966 of the Civil Code defines an entrepreneur as one who professionally engages in organized economic activity for the production or distribution of goods or services. These are four cumulative elements—professionalism, economic nature, organization, and market orientation—not a list from which one can choose just two.
Notarial and registration activities fulfill some of these elements. However, they constitute a public service performed privately by delegation, pursuant to Article 236 of the Constitution, and are subject to the specific regime established by Law No. 8.935/1994. The reporting judge for the repetitive appeal, Justice Teodoro Silva Santos, accurately summarized the idea by stating that the notary public acts as an extension of the state—and that this status keeps him outside the legal framework governing businesses.
In this context, “organizing” does not mean “undertaking.” It means “providing.”
An organization, in and of itself, is not an element of a business
One might object that a notary’s 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 definition 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 aides or collaborators. The existence of a subordinate team was anticipated and neutralized by the legislature. Having employees has never, on its own, been an indicator of entrepreneurship.
And the notary is, by legal definition, a legal professional endowed with public faith, as provided in Article 3 of Law 8.935/1994.
This leaves the second part of the provision, which is the true counterargument and deserves direct rebuttal: an intellectual professional will be an entrepreneur if the practice of the profession constitutes an element of a business. This scenario involves absorption—the intellectual activity ceases to be the center and becomes one of several factors organized by a structure that transcends it.
This is not the case with extrajudicial notary services, for two reasons.
The first is the personal nature of the delegation. It results from passing a civil service examination, is assigned to a specific individual, and cannot be transferred, assigned, or inherited. Public trust is not detached from the holder to be exercised by the organization; the structure serves the delegatee, not the other way around. Therefore, precisely what the caveat presupposes is lacking.
The second reason is the lack of organizational autonomy. The business owner chooses the subject matter, the price, the market, and the timing of entering and exiting it. The notary public chooses none of these: the scope of duties is defined by law, compensation is set by a schedule of fees, the district is territorially delimited, and admission depends on a competitive examination. An activity whose essential elements are all externally defined can hardly be described as organized by the agent for the production or circulation of services in the market.
There is, therefore, a structure. What is missing is the freedom to organize it—and it is this freedom that defines the entrepreneur.
The distinction between entrepreneurial activity and the activity carried out by extrajudicial services can be better understood based on this idea of organizational autonomy. In Ronald Coase’s economic conception1, 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, by contrast, 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 goes so far as to identify the replacement of the price mechanism with coordination exercised by the entrepreneur as a distinctive feature of the firm.
This formulation makes it clear that the business organization is not limited to the existence of a physical structure composed of people, assets, and technology. The firm presupposes an autonomous center for economic decision-making. The entrepreneur determines which activities will be carried out, which resources will be mobilized, which transactions will be internalized, the scope within 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 management of resources comes to depend on the entrepreneur, with its expansion determined by the incorporation of new transactions into the sphere of entrepreneurial coordination. The power of organization, therefore, involves not only the internal management of the resources employed but also the ability to determine the economic contours of the activity itself.
It is precisely in this respect that a structural difference between the firm and the extrajudicial agency becomes evident. The entrepreneur operates, in principle, within a sphere of economic autonomy in which it is up to him to choose the object of the activity, establish the operational strategy, select the market in which to operate, set prices according to prevailing economic conditions, decide on the expansion or reduction of the business, and—subject to general legal limitations—determine when to enter or exit the market. These elements constitute the very essence of the freedom of business organization.
In notarial and registry activities, by contrast, the essential elements of the practice are predominantly defined by the legal system. The holder of the notarial office does not freely choose the duties they intend to perform, as their authority derives from the law and the delegation received. They do not independently set the price of services, since remuneration is based on a statutory fee schedule. They do not select the territory in which they intend to compete, because their practice is tied to a jurisdiction defined by law. Nor can they freely enter the profession, as access to the position depends on a competitive examination and state delegation. In other words, decisions that, in the business world, are typical expressions of an economic agent’s autonomy are, within the context of extrajudicial notarial services, predetermined by rules external to the notary.
This is not to deny that the delegatee has significant leeway in administrative organization. Evidently, it is their responsibility to structurally organize the service, hire and supervise staff, acquire equipment, select technological solutions, assign internal duties, and manage the resources necessary for the proper provision of services. This autonomy, however, is predominantly managerial in nature. It pertains to the means used to carry out an activity whose fundamental legal framework has already been established by the State. There is, therefore, a difference between managing an organization and exercising entrepreneurial autonomy over the economic structure of the activity itself.
Coase’s theory helps clarify this distinction. In examining the internal relationships within a firm, the author observes that the entrepreneur is granted, within certain limits, the power to direct the factors of production, retaining the concrete choice regarding their use. Entrepreneurial activity thus presupposes a significant sphere of residual decision-making left to the entrepreneur. In extrajudicial services, however, the intensity of regulatory discipline extends precisely to several of the activity’s constitutive elements: purpose, compensation, territorial scope, conditions for entry, and the framework for service provision. The decision-making scope reserved for the service provider focuses primarily on the manner in which the service is performed, rather than on the economic definition of the service to be offered in the market.
For this reason, the mere presence of capital, labor, technology, and administrative structure does not appear sufficient to equate an extrajudicial service with a business. The term “organized economic activity,” when considered in its economic-functional dimension, implies more than the material coordination of factors of production: it implies that this organization results from fundamental economic choices made by the agent itself. When the essential elements of the activity are defined by the State, it is precisely the component of autonomy that characterizes business organization that is weakened. The holder of the service organizes the means necessary to fulfill a legally defined function, but does not, strictly speaking, possess the same power of economic shaping that characterizes the entrepreneur in the market.
A CNPJ Does Not Create a Business
The STJ also rejected the argument that the mandatory registration of the public service in the National Register of Legal Entities (CNPJ) would suffice to characterize it as a business activity. The assignment of a CNPJ number does not alter the legal nature of the holder, who remains an individual, nor does it give rise to a sole proprietorship or an autonomous legal entity.
It is worth emphasizing this, because the confusion is common in practice: the CNPJ is a registration, not a legal personification. It serves tax and identification purposes and applies to depersonalized entities of all kinds—condominiums, consortia, funds, and silent partnerships. The equation “CNPJ = legal entity = company” is incorrect on both sides of the equation.
This equivalence has limits—and they are defined by its very purpose
The National Treasury argued that notary public office holders, although individuals, are treated as companies for certain social security purposes, pursuant to the sole paragraph of Article 15 of Law 8.212/1991.
The Court refused to extend this equivalence from one regime to another. Equivalence is a legislative technique and a purpose-driven one: it applies to the field in which it was established and does not extend by analogy to other regimes. An individual may be treated as a business for a specific legal purpose without becoming a business owner for all legal purposes.
And here it is important to avoid an overly broad interpretation of the precedent. The STJ did not declare notary offices immune from taxation nor did it deny the economic dimension of their activities. The STF, in dismissing ADIn 3.089/DF in 2008, had already declared the imposition of ISS on notarial and registration services to be constitutional, precisely because it recognized the delegatee’s own capacity to pay taxes. The two rulings coexist without contradiction—and it is this coexistence that clearly reveals the thesis: notarial services have taxable economic content, but the notary is not an entrepreneur.
Denying the business nature of the activity does not deny the existence of economic activity.
What Changes When the Party Is Not an Entrepreneur
This point often goes unnoticed because the discussion originated in the context of taxation. But the classification has repercussions far beyond the tax in question.
The provisions of Law 11.101/05 do not apply: there is no bankruptcy or judicial reorganization of an extrajudicial notary office, because the law applies to business owners and business entities. There is no “establishment” within the meaning of Article 1.142 of the Civil Code, and therefore, there is no transfer of business, no assignment of business assets, nor any negotiable business assets—the material assets of the service do not change hands, and the delegation terminates upon the death or retirement of the holder, in accordance with Law 8.935/1994. There is no business name, no registration with the Board of Trade, and no business succession to be transferred. And civil liability is governed by its own rules, those of Article 22 of Law 8.935/1994, as amended by Law 13.286/16.
None of this is a tax consequence. It is a conceptual one.
The parallel with civil associations
This consequence is not theoretical, and another line of STJ case law has been demonstrating this—at a considerably higher social cost.
In November 2025, the 4th Panel unanimously ruled on REsp 2.008.646/RS, with Justice Raúl Araújo serving as the reporting judge, and denied the civil associations of the Methodist Group—educational institutions with thousands of employees and tens of thousands of students—standing to file for 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 No. 11.101/05 applies to business owners and business entities, and its scope cannot be expanded through broad interpretation.
The argument put forward by the companies undergoing reorganization is precisely the one that Business Law requires us to examine: the absence of a for-profit purpose would not preclude the classification of an activity as a business, provided that wealth is generated and surpluses are reinvested, such that an association meeting the requirements of Article 966 of the Civil Code should have access to the reorganization regime. The argument is a serious one, and the Public Prosecutor's Office even supported it. Nevertheless, it did not prevail.
The same line of reasoning that would later be seen in Theme 1.228 prevailed: the economic significance of the activity does not determine the legal regime of the entity carrying it out. And the Court added a concern for systemic consistency—entities that enjoy favorable tax treatment precisely because of their non-business nature cannot, at the same time, invoke the instruments reserved for those who submit to the burdens of the business regime. To choose the legal status is to accept the whole package.
The exceptions, incidentally, confirm the rule. The access of medical cooperatives and soccer clubs to insolvency mechanisms stemmed from an express legislative choice, not from a judicial construction. Where the legislature intended to treat them equally, it did so—and, once again, it did so for a specific purpose.
The parallel with notary offices is instructive because of the contrast. Extrajudicial notary offices and educational associations have nothing in common in terms of origin, function, or legal regime. But both handle significant funds, employ staff, enter into contracts, and incur debt—and both remain outside the business regime, because legal classification is not determined by economic scale.
There is, however, a relevant difference regarding the consequences, and it deserves mention. In the case of notary offices, exclusion from the bankruptcy regime leaves no legal vacuum: the delegation of authority is personal, revocable, and subject to oversight by the Judiciary, and the insolvency of the officeholder is resolved through the mechanisms specific to the administrative regime to which it is subject. In the case of economically active civil associations, however, the effect is a real gap—thousands of entities without any legal avenue for reorganizing their liabilities, which tends to result in the cessation of operations. Recognizing that the legal characterization is technically correct does not preclude the conclusion that the solution, in this case, depends on the legislature, not on the interpreter.
It is the interpreter’s role to classify. It is the legislature’s task to equate.
The Employer Who Is Not a Company
There is a labor law implication that, in my view, is the most elegant of all—and which confirms the STJ’s reasoning based on a much older statute.
Article 2 of the CLT defines the employer as the company that assumes the risks of economic activity and hires, pays, and directs the personal provision of services. If the definition stopped there, the notary public, who hires under the CLT regime and in their own name, would fall outside its scope. Paragraph 1 resolves the issue by analogy, extending the definition to include independent professionals and nonprofit 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 has known since 1943 that there are employers who are not companies, and took care to delimit the scope of the equivalence it established. What the STJ decided in 2026 is the same lesson, transposed to the tax field. Someone who is treated as an entrepreneur for one purpose does not automatically become an entrepreneur for all purposes.
A vocabulary that remains indispensable
The ruling helps restore distinctions that are often blurred in practice:
- business: an organized economic activity, professionally carried out for the production or distribution of goods or services;
- entrepreneur: the individual or legal entity that carries out this activity;
- business entity: one of the legal forms through which the activity may be carried out;
- establishment: the set of assets organized for the operation of the business;
- legal entity: a legal subject that may, among other possibilities, be an entrepreneur.
These terms 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 proceeds in the wrong direction: there is an organization, therefore there is a business; there is a CNPJ, therefore there is a legal entity; there are employees, therefore there is an entrepreneur.
The correct order is the reverse. First, the legal nature of the activity is identified. Then, the presence of the elements characterizing the business and the business owner is verified. Only then is the applicable legal regime defined.
Theme 1.228, therefore, is more than just a tax precedent favorable to extrajudicial services. It is a reaffirmation of the conceptual autonomy of Business Law—and economic reality, however eloquent it may be, does not preclude legal classification.
Faced with each new form of economic organization that emerges, the first question remains the same:
Are we dealing with a business enterprise, or merely an economic activity subject to its own legal regime?
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 Appeal 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. Thesis established: notaries and registry officers are not liable for the salário-educação contribution provided for in Article 212, § 5, of the Federal Constitution and instituted by Article 15 of Law No. 9.424/1996.
Supreme Federal Court (STF), Full Bench, ADI 3.089/DF, decided Feb. 13, 2008 (constitutionality of the levy of the ISS tax on notarial and registration services).
STJ, Fourth Panel, REsp 2.008.646/RS, Rapporteur Justice Raúl Araújo, decided Nov. 18, 2025, unanimously (civil associations lack standing to file for judicial reorganization). To the same effect, Third Panel, REsp 2.026.250 and REsp 2.175.284.
Civil Code, Art. 966 and sole paragraph; Arts. 1.142 and 1.144 through 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.
- COASE, Ronald H. The nature of the firm (1937). The nature of the firm: origins, evolution, and development, 1993, 18-33.