See the precautions before entering with the INSS lifetime review

By 6 to 5, the STF (Federal Supreme Court) decided this Thursday afternoon (1st) that part of Brazilians will be able to review their retirement calculations to consider all their contributions.

In the virtual plenary, retirees had already achieved the same score in March, but the topic had to undergo face-to-face analysis at the request of Minister Nunes Marques.

Thursday’s judgment corrected what the court saw as a distortion of the 1999 pension law. The decision cannot be requested by any retiree and is not always advantageous, as can be seen below.

What does the Supreme Court decision mean?

Law 9,876, from 1999, was created to modify the retirement calculation rule, which considered only the last 36 salaries prior to the application for the benefit.

The norm, however, was dubious: on the one hand, it created a transition rule that considered only wages after July 1994, when the Real Plan was launched. On the other hand, it established a definitive rule that determined the inclusion of 80% of the highest salaries, considering the entire productive life.

Last Thursday, the STF pacified the issue when it determined that some Brazilians will be able to review their retirement calculations considering lifetime contributions, including those paid in other currencies, prior to the real.

THE The 1999 Social Security reform created two calculation formulas for the average salary (benefit amount basis):

1. Transition rule: For those who were already insured with the INSS until November 26, 1999

2. Permanent rule: For those who started contributing to the INSS from November 27, 1999

How much will it cost the government?

In March, shortly after Minister Nunes Marques’s request for prominence in the virtual plenary, the INSS announced that a judgment favorable to retirees would imply an extra R$ 360 billion in public coffers in 15 years – an even greater amount than calculated in 2021 , of R$ 46 billion in ten years.

Such numbers are questioned by Ieprev (Institute of Social Security Studies). On average, the gain in retirement would be 3.1%, according to the institute, a figure 25% lower than that estimated by the INSS.

The Union, in accordance with the 2023 Budget Guidelines Law, estimates that the approval of the understanding could impact public accounts by BRL 480 billion.

Who can ask for a lifetime review?

Not everyone can ask for a review. Some criteria must be respected:

1. Those already retired must have started receiving the benefit less than ten years ago. The account begins the month after the first payment is received.
2. Those who have not yet retired must have acquired the right to receive the benefit before the Social Security reform, in November 2019. Thus, it is possible to use Law 9.876/99, affected by the STF decision.
3. Have proof of contributions prior to 1994.
4. Receive any benefit that has been calculated based on Law 9.876/99, such as pensions and allowances.

What documents do I need to attach?

For contributions after 1982, it is possible to use Cnis, as the service was created in that year. In addition to it, citizens can request a financial statement from the companies they worked for. Detailed statement of the FGTS (Fund for the Guarantee of Length of Service), work card and paychecks are also valid.

If any period is left blank, it is considered that a minimum wage was received, which may reduce the value of the benefit. The obligation to demonstrate contributions is for those who apply for retirement, not for the INSS.

What period do arrears cover?

Those who have recognized the right to a retirement review can receive the arrears. In this case, it is possible to obtain the difference accumulated in the five years prior to the filing of the case in court plus the period that elapsed until the case was won.

Who is it advantageous for?

In general, there are chances of benefiting those who earned a higher salary before 1994 and, after that, saw their salary decrease. You need to be careful not to be fooled by the high devaluation of the currency before the Real Plan.

“These were periods of high inflation rates, so some people are wrong. They think they earned more, but when the currency stabilized, in 1994, they started to earn more”, says João Badari, from ABL Advogados.

According to Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies), this will be an exception rule.

“Most people start earning less and, at the end of their lives, they earn more”, he says. “But there are people, mainly those who do more manual work, who start earning better wages and, at the end of their lives, earn less.”

Despite this guidance, it is only possible to pinpoint which case is advantageous with specific calculations, which are made on a case-by-case basis. It is possible to file a lawsuit in a Special Federal Court, but the amount of arrears would be limited to 60 minimum wages (R$ 72,720).

Will the decision be automatic?

Not for now. For this to happen, a public civil action would be necessary to force the INSS to automatically pay the review even for retirees who do not apply. For the time being, it is necessary to await the motion for clarification and the final and unappealable decision of the action. The action gains this status only after the publication of the judgment, which must occur within 60 days, and the subsequent deadline for filing embargoes. Experts say the government is likely to introduce embargoes aimed at trying to limit the scope of the review.

The AGU (Attorney-General of the Union), which represents the INSS in court, reported that it will analyze possible requests for modulation.

“It depends on the will of the new government to create an internal rule that makes this possible, because at the moment it does not exist”, says the lawyer Gisele Kravchychyn, who represented the retiree in the case judged by the STF on Thursday.