Self-employed INSS: See new rules for paying late contributions and retiring

​Self-employed professionals who carry out paid work and are late in paying contributions to the INSS (National Social Security Institute) may find it more difficult to pay off the amounts and apply for some social security benefit.

In an ordinance published on the 22nd of the Official Gazette, the INSS released rules that limit the release of retirement and other benefits in the case of those who are going to pay the debt that is in arrears.

The new rules, provided for in ordinance 1382, are based on the Social Security reform, which took effect on November 13, 2019, and the decree that regulated the reform, of July 1, 2020. Among the main points is the limitation the use of these periods as grace period (minimum time to have a social security benefit) and time of contribution to retirement, according to the date of payment of the contribution in arrears.

The document states that “the contributions collected late referring to the competences prior to the date of that first collection on time will not be considered as a grace period”. If the self-employed person spent two years without paying the INSS, for example, and wants to pay these amounts now, they will only count as a grace period for periods subsequent to the payment date, even if the activity took place in previous years.

According to the previous rule, in force until June 30, 2020, the grace period was counted according to the month of competence, and not on the payment date. The exception is when the discharge is carried out within the period in which the citizen still maintains the status of INSS insured, that is, the right to Social Security coverage.

The grace period for social security benefits varies according to the type of application. If you are going to receive a pension, the minimum is 180 contributions (15 years). In the case of those who are going to apply for sick pay, 12 months are required.

In the case of contribution time, the limitation was even greater. Although the worker can add up the late payments as contributions to his retirement, the new rules prevent, for example, that when paying off the amounts, he can achieve the right to the benefit.

According to the INSS, late contributions paid at any time, even after loss of insured status, count as contribution time, however, it is necessary to be aware of the so-called taxable event, which is the date on which the insured person makes the payment of late contributions.

According to the lawyer Jane Berwanger, from the IBDP (Brazilian Institute of Social Security Law), the rule harms those who apply for retirement, especially those who, during the administrative process of the benefit, want to pay off overdue periods to win the right to a better rule. .

“A self-employed worker who asked for the benefit on January 1, 2020 and, in the administrative process, he asks the INSS to discharge two years as a businessman, between 2004 and 2005, but the INSS takes a long time to respond and issues the guide payment only this month. Even if the citizen pays the amounts, his retirement will only count from the payment date, not from the request date”, she explains.

The lawyer Roberto de Carvalho Santos, from Ieprev (Institute of Social Security Studies), says that the limitation of the taxable event is also harmful when it comes to the request for sick pay, for example. If the self-employed person became ill before paying the INSS in arrears, even if the illness occurred while he was working, he wants to settle this account, he may not get the benefit, since the taxable event will be the payment date.

Social Security Reform

The ordinance also limits the possibility of the self-employed entering into the transitional rules of the Social Security reform. According to the document, when paying the INSS in arrears, the insured cannot benefit from the 50% and 100% toll transition rules, which are among the most advantageous.

At the 50% toll, the professional must work for more than half of the time left before retirement on the date the Social Security reform began to take effect, on November 13, 2019. If there were two years left, it will be necessary to contribute to the INSS for three years in total. This rule includes women with 28 years of contribution at the beginning of the retirement and men with 33 years of contribution. There is no minimum age.

At the 100% toll, the worker must be at least 57 years old for women and 60 years old for men. It is necessary to work more 100% of the time needed to receive the benefit on the date of the Social Security reform.

For the INSS, in this case, the triggering event is the entry into force of the Social Security reform. If you did not have payments by that date, it is not possible to be part of the toll that brings an advantage, even if the worker proves that he performed a paid activity before, and only delayed payment of contributions.

“This ordinance of the INSS presidency does not allow the person to make the payment to eventually satisfy a requirement, which is a right of the insured according to the law”, explains Santos.

The self-employed person can still use the periods to enter the other retirement contribution rules: by points, by progressive minimum age and for retirement by age.

The specialists consulted by the sheet they believe that the issue should end up in court, since the institute would be modifying the legislation through an ordinance, which would be illegal. “You have law 8.212/1991, which is the costing law. It obliges the self-employed person to pay contributions, even in arrears, if he worked in the last five years, as it is a tax. The ordinance cannot change rule of a tax”, states Santos.

In addition, according to him, the same law guarantees the self-employed worker the right to indemnify the INSS at any time, guaranteeing their social security benefits. “This ordinance, in fact, would not have the power to change a law that defines the tax obligation first, then the right. It cannot end this.”

In a note, the INSS states that the rules apply to all “requests pending analysis”. And it informs that the limitations are not only applied “as a supplement to the benefit requirements” of the self-employed, that is, when the worker pays the difference in the monthly contribution.