STF decision reinforces billionaire contribution on vacation third

The decision taken by the plenary of the Federal Supreme Court (STF) last Thursday (9), that the votes of retired ministers are valid in new judgments on the same topic, reopens a debate that can make companies pay around Rs. $80 billion to pay social security contributions on the vacation third of its employees.

The plenary of the court defined that when there is a request for prominence in a virtual trial with the vote of a minister who has already retired, the position is valid and should not be discarded in a new trial in the physical plenary.

The decision will have an impact on the judgment of the lifetime review, which has a favorable vote by Minister Marco Aurélio de Mello, now retired, and with the modulation of theme 985, which deals with the incidence of contribution to the INSS (National Institute of Social Security) on the constitutional third of vacation. There are another 19 cases with the rapporteurship of Marco Aurélio, whose votes will be considered in the new judgments.

The calculation of expenses ranging from R$ 60 billion to R$ 80 billion to be disbursed by companies is from Abat (Brazilian Association of Tax Lawyers). The association seeks the suspension of the charge in the Supreme Court until the judgment is fully finalized. The impasse began in 2020, when the STF decided that the constitutional third of vacations is of a labor nature and, therefore, a 20% social security contribution is levied on it.

The decision was against what had already been defined by the STJ (Superior Court of Justice), in 2014, that there is no labor nature in the amount and, therefore, there is no payment of INSS. “The number we bring is based on the remuneration of the vacation third, taking into account the payroll of all companies, including the part of third parties, and a percentage of 28.5%”, explains Halley Henares Neto, president Abat and partner at Henares Advogados.

According to him, the association asked the STF to suspend all proceedings in progress in court until there is a modulation on the subject. The modulation began in 2021, in the virtual plenary of the Supreme, but the debate was interrupted after a prominent request from Minister Luiz Fux, who will lead the trial to resume in the virtual plenary, now with a contrary vote by Marco Aurélio.

The billion-dollar debt calculated by Abat refers to the period between 2014 and 2021, the date of publication of the judgment, when companies stopped paying the contribution based on the STJ court decision and were obliged again after the Supreme Court decision.

Lawyers defend modulation and face-to-face judgment

“From that moment onwards, companies ended up collecting taxes again. If they do not modulate, based on legal certainty, there will be a breach of the principle of protection of the taxpayer’s confidence in the Judiciary”, says Henares Neto.

For lawyer Rodrigo Prado Gonçalves, partner in the areas of restructuring and insolvency and tax at Felsberg Advogados, modulation is necessary to ensure legal certainty.

“If there is not this modulation after a decision that reverses another, those taxpayers who stopped contributing what was a credit, are left with a very high debt, especially at this time of crisis, inflation and war in Ukraine.”

He advocates face-to-face judgment. “It is extremely important to reach a consensus. It is commendable and salutary that this topic be discussed in a broad way”, he says.