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The Non-levy of Social Security Contribution on the Constitutional Third and Note  PGFN/CRJ/Nº 981/2017 – Misinterpretation RE 565.160

The Federal Supreme Court, on 3.29.2017, finalized the judgment of RE 565.160, of the rapporteur of Min. Marco Aurélio, who dealt with theme 20 of general repercussion, establishing the following thesis: “The social contribution borne by the employer is levied on the employee's usual earnings, whether before or after Constitutional Amendment No. 20/1998”


The judgment, which taxpayers had been waiting for years, and which concerned the basis for calculating the social security contribution, instead of settling discussions on the subject, reignited controversy, especially regarding the constitutional third, in our view and, as is intended to demonstrate, due to a misinterpretation of the established thesis.


The PGFN, which had already included in the list of waiver to appeal to the Superior Court of Justice the actions that dealt with the inclusion of the amounts paid as a constitutional third in the basis for calculating the employer's social security contribution, changed its understanding, through the note PGFN/CRJ/Nº 981/2017, as it understands that, under the terms of the understanding set forth by the Federal Supreme Court, employers' social security contributions are levied on any amount considered usual, and began to demand the filing of a special appeal by its attorneys. We reproduce below an excerpt from that note:


  1. a) in relation to the understanding of the STF, in RE nº 565.160/SC, regarding the possibility of levying social security contribution on usual earnings, notably, considering the fact that the Supreme Court has qualified the constitutional third of vacations as usual earnings, it is understood whether the waiver of a special appeal should be revoked for the issue of social security contributions payable by the employer regarding the constitutional third of vacations;


It turns out that, contrary to what the PGFN understands, the result of the judgment of the aforementioned Extraordinary Appeal No. 565.160 does not determine the incidence of the employer's social security contribution on the amounts paid as a third constitutional, but recognizes that the Constitution would authorize it, provided that the infraconstitutional legislation so provides.


It is that although, in fact, the fullness of the e. Supreme Federal Court unanimously established the thesis that the expression “payroll”, contained in art. 195, I, “a”[1], encompasses any and all habitual earnings, as determined by §11 of art. 201[2], this does not mean that the employer's social security contribution must necessarily be levied on all these amounts.


Paragraph 11 of article 201 of the Federal Constitution itself authorizes the infraconstitutional legislator to regulate the hypotheses in which the usual earnings will be incorporated into the salary, for the purpose of social security contribution, as provided “in the cases and in the form of the law”. The expression used leaves no room for doubt that the Constituent Assembly designed the scope of the possible calculation basis, but left it to the infraconstitutional legislator the duty to define, within this broad concept, what will serve as a calculation basis for the employer's social security contribution .


Paragraph 11 of article 201 of the Federal Constitution, in this vein, in the lessons of Manoel Gonçalves Ferreira Filho, quoted in the vote of Min. Alexandre de Moraes only “(…) anticipates what could be determined by law; therefore, its content is preordained (…) (Comments to the Brazilian Constitution of 1988. São Paulo: Saraiva, 1995, 4th volume, p. 63)”.

The Min. Edson Fachin, in his vote in the records of RE 565.160, in the same sense, points out:

Art. 195. Social security will be financed by the entire society, directly and indirectly, under the terms of the law, through resources from the budgets of the Union, States, Federal District and Municipalities, and the following social contributions:
I – the employer, the company and the entity equivalent to it under the law, incident on:
a) the payroll and other income from work paid or credited, in any capacity, to the individual who provides services, even without an employment relationship;
Art. 201. Social security will be organized in the form of a general regime, of a contributory nature and mandatory membership, observing criteria that preserve the financial and actuarial balance, and will meet, under the terms of the law, the
The employee's usual earnings, in any capacity, will be incorporated into the salary for the purpose of social security contribution and consequent impact on benefits, in the cases and in the form of the law.

“In this regard, it should be noted that the Constituent Power referred to the legal scope the definition of cases in which the employee's usual earnings are incorporated into the salary for purposes of social security contribution, pursuant to the provisions of art. 201, §11, of the Constitution of the Republic.” Min. Luis Roberto Barroso, also in his vote, along the same lines, points out how unreasonable it would be to intend to limit the field of action of the ordinary legislator, restricting the scope of the expression “payroll”. The Minister recognizes that, based on the broad basis defined by the constitution, it is incumbent upon federal legislation to define the basis for calculating the tax. Check it out:

The new rule of competence of the employer contribution, provided for in art. 195, I, a, of the Constitution, leaves no doubt as to the possibility of including in the contribution calculation basis, in addition to salary amounts, “other earnings from work paid or credited in any capacity.” Thus, after the change in the constitutional text, it seems even more inappropriate to intend to limit the reasonable scope of action of the ordinary legislator to define the basis for calculating such a tax. It is, as in many tax cases, an attempt to legalize a discussion that is eminently one of fiscal policy and not of constitutional law.


And really, it couldn't be any different. As is known, the Federal Constitution does not establish a tax, nor does it define its calculation basis or rate. Although all laws are subordinated to constitutional commands, only the law can create, institute, define the calculation basis, change the tax rate, etc., under penalty of affronting the principle of legality, whose foundation is art. 5, II of the Constitution, according to which, “no one shall be obliged to do or not to do anything except by virtue of the law”.


In the case of social security contributions, law nº 8.212/91, in its article 22, in the exercise of the competence established by article 201, §11 of CF/1988, therefore within the wide spectrum of action conferred by the Constituent Assembly, chose not to tax amounts of an indemnity nature, even if they are customary, by providing that the contribution will be “twenty percent of the total remuneration paid, due or credited in any capacity (…) to insured employees and independent workers who provide services, intended to reward work, whatever its form (...), either for the services actually rendered, or for the time available to the employer or service taker (...)".


In other words, the ordinary legislator created a new requirement – in addition to regularity – for the incidence of the employer's social security contribution, leaving out the amounts of an indemnity nature (albeit usual) and, evidently, the non-habitual amounts, these, by expression constitutional provision.


The thesis proposed by Min. Luís Roberto Barroso, on the occasion of the judgment of RE 565.160, which seems to us to be much more correct than what was accepted, because it is much more enlightening, leaves no room for doubt:


“art. 22, I of Law 8212/91 is constitutional, and the employer's social security contribution must be levied on funds arising directly from the employment relationship, usually paid and due to the work activity carried out by the worker, excluding those of a clear indemnity nature and those eventually paid by mere liberality”.


Or, as suggested to Min. Cármen Lúcia: “the basis for calculating the contribution payable by the company provided for in the original norm of art. 22, I, of Law 8.212/1991 and the amendments promoted by Laws nos. 9,528/1997 and 9,876/1999”


It remains, therefore, evident that RE 565.160 has been misunderstood by the PGFN, which insists on maintaining that the established thesis would have made obsolete the understanding expressed in the records of REsp nº 1.230.957/RS, by the Superior Court of Justice. Corroborating this misinterpretation, Min. Edson Fachin, emphasized, in his vote in the aforementioned RE, that, once the field of action of the ordinary legislator is defined by the Federal Constitution, the analysis of the legal nature of each amount is an eminently infraconstitutional matter, mentioning REs 745.901 and 705.941,_cc781905 -5cde-3194-bb3b-136bad5cf58d_as precedents. The analysis of the nature of the sums continues to be a criterion for defining their inclusion or not in the basis for calculating the employer's social security contribution. In verbis:


In this sense, the Federal Supreme Court has iteratively manifested itself for the infraconstitutionality of controversies related to the definition of the legal nature of funds for taxation purposes, whether by social security contribution or by income tax.

And ends:


In short, I understand that the scope of the term "payroll" includes the total remuneration paid or credited by the company as a result of subordinate work, provided through an employment relationship.


Furthermore, the aforementioned scope does not exceed art. 22, I, of Law 8.212/91, so the device is constitutional in the original wording and subsequently given.


The reaffirmation of the constitutionality of art. 22, I of Law No. 8.212/91, in fact, in a diametrically opposite sense to what the PGFN has been supporting, reinforces the impossibility of levying employer social security contributions on amounts of an indemnity nature (albeit customary), insofar as it recognizes the constitutionality of the legal device that, although it restricts the calculation basis authorized by the Constitution, does not offend it.


The result of the judgment of RE 565,160, in practice, in no way influenced the understanding that was already being adopted by the STJ, when it decided, in the records of REsp 1,230,957, judged in the systematic of repetitive appeals, that there is no social security contribution on compensatory character, namely, constitutional third, indemnified prior notice and the first fifteen days of sick pay.

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