STF cancels confiscation of INSS arrears, see who will benefit

The federal government will no longer be able to confiscate amounts paid in judicial arrears by the INSS (National Social Security Institute) that have not been withdrawn by policyholders within two years, according to the decision of the Federal Supreme Court (STF) this Thursday (30).

By six votes to five, the ministers of the Supreme Court ruled that Law 13,463, of 2017, established in the Temer government, is unconstitutional and can no longer be applied. Since then, beneficiaries who won the institute in court and did not withdraw the RPVs (Requisitions of Small Value) or precatories within two years had the amounts returned to the National Treasury.

Precatórios and RPVs are government judicial debts. The citizen who is entitled to an amount above 60 minimum wages receives through a precatory, which starts at R$ 72,720 this year. Payment is made once a year. Small-Amount Requisitions are for up to 60 salaries and fall into the beneficiary’s account two months after the judge’s payment order.

By law, amounts stopped for more than two years in court accounts should be returned. The confiscation began in March 2017, before the publication of the legislation, and was authorized by an ordinance published by the AGU (Advocacy-General of the Union).

At the time, the intention was to recover around R$ 8.6 billion that were stuck in more than 490 thousand accounts across the country. The legislation dictates that the court must notify the creditor of the redemption.

In addition, the AGU rule determined that money that had been idle for more than five years should be returned to the Treasury within 45 days. The legislation allowed the insured to make a new request to have the values ​​back.

Who can benefit from the new rule?

Lawyer Priscila Arraes Reino, from Arraes e Centeno Advocacia, says that all policyholders who had their arrears confiscated may benefit from the decision. To get the money back, however, they will have to file a lawsuit in court.

“To recover the amounts already returned to the public entity, it will be necessary to restitution action against those who kept the money, due to the unconstitutionality now recognized”, he explains.

According to her, in general, the money is “forgotten” because, in many cases, the person does not know that the payment has already been made, as the process takes years to come out. There are also cases of heirs who do not know that the insured person who died was entitled to the values.

Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies), says that the qualification of heirs in the process to receive arrears could take time, and the law allowed the amounts to be returned to the public coffers.

“It was a big decision, because when the insured could not make the withdrawal and had the money returned, he had to make a new request to review the values ​​and, often, this money was not recovered”, he says.

Ministers understood that there was legal uncertainty

In the trial, the vote of Minister Rosa Weber, rapporteur of the action, prevailed. According to her, by understanding that the insured no longer has the right to the value, the law violates the principles of legal certainty, the guarantee of res judicata (final court decisions) and due process of law.

Minister Alexandre de Moraes stated that the questioned law created a restriction on the right to receive the precatory, which would be an “innovation” in constitutional matters. In addition to him, ministers Edson Fachin, Dias Toffoli, Ricardo Lewandowski and Cármen Lúcia voted with Rosa Weber.

Ministers Gilmar Mendes, Luís Roberto Barroso, Nunes Marques, André Mendonça and Luiz Fux voted against, but were defeated.

Sought, the AGU (Advocacy-General of the Union), which defends the INSS in court, did not return until the publication of this text. The CJF (Council of Federal Justice), responsible for transferring the money to pay precatories and RPVs to regional courts, also did not respond.

The TRF-3 (Federal Regional Court of the 3rd Region), which serves São Paulo and Mato Grosso do Sul, stated that the return of undrawn amounts was made by banks.

Febraban (Brazilian Federation of Banks) reported that “the decision does not affect the sector, as the banks’ role was merely operational”. The other regional courts also did not take a position.