Forced to pay extraordinary contributions to cover shortfalls from previous years, participants in state pension funds are facing a legal dispute against the Federal Revenue Service to try to change the rules for collecting income tax on these amounts.
Active workers, retirees and pensioners from companies such as Caixa Econômica Federal, Petrobras and Correios try to extend, to extraordinary contributions, benefits that ordinary payments already have, such as income tax exemption and the possibility of deducting the amounts in the adjustment statement .
They allege that the differential treatment disrespects current legislation and burdens participants even more, who are already obliged to deliver a significant portion of their salaries to plans to solve previous deficits.
Among Postalis and Correios participants, the deduction of up to 12% of earnings has been applied to the benefits and salaries of around 80,000 workers and retirees since mid-2020.
According to Adcap (Association of Postal Professionals), author of two actions on the subject, despite favorable injunctions (provisional decisions), some participants still fall into the fine mesh of the IR, which led the association to seek justice again.
On January 25, federal judge Liviane Kelly Soares Vasconcelos, substitute for the 20th Federal Court of the Federal District, determined compliance with the decision that suspended discounts and defined that the Federal Revenue, represented by the Union in the process, can only demand the presentation of extra documents –the defense in case of fine mesh– if it is understood that a specific taxpayer is not covered by the deduction.
“What is not allowed”, he wrote, “is the creation of obstacles to the execution of the judicial decision that was sufficiently clear in determining the suspension of the payment of the Income Tax levied on contributions made to the supplementary pension plans instituted by Postalis, even that they are additional extraordinary contributions.”
Roberval Borges Corrêa, Adcap’s legal director, says that for retirees, who no longer have contributions to the common Social Security, the deduction is applied to their gross income. For active professionals, the discount is based on the sum of income.
Postalis participants pay, in deficit coverage contributions, between 18.81% and 27.30% of their salaries, pensions or pensions.
In the evaluation of the Correios association, the differentiation in the deduction rule does not make sense because the contributions have the same purpose, which is the constitution of the fund’s equity.
At Petros, which manages the retirement of Petrobras employees, for example, the extra charge for solving the deficit for 2015 and 2018 varies from 10.56% to 13.59% depending on the type of plan and the situation of each participant at the end of 2019. At Funcef, the value reaches 20%.
The collection of tax on extraordinary contributions was defined by the Federal Revenue Service in 2017, after consultation with Funcef, the foundation that manages the pension plan for Caixa employees. In that year, participants in the entity’s funds already paid additional contributions.
“It is not possible to give social security contributions different tax treatment only on the basis of their classification name”, defend Funcef and Anapar (National Association of Participants in Complementary Pensions and Self-Management in Health).
In the action, they recall that the issue was already the subject of a legal dispute in the late 1980s, with the victory of the beneficiaries of the funds, which led to the return of the tax withheld at source on extraordinary contributions collected between January 1988 and December 1989.
The IRS says that the 2017 consultation is the most recent on the subject. Others came to the Tax Authorities, but all were linked to that and reached the same conclusion, that the deduction provided for by law is valid only for normal contributions, intended for the cost of benefits.
The tax authorities also state that all statements undergo review. Having or not having an injunction granting the deduction does not automatically prevent the adjustment statement from being withheld.
“As the information is verified, the declaration is released. If there is any discrepancy, the RFB makes the information available to the taxpayer, an opportunity in which he, if necessary, can correct the information he deems wrong”, he says.
According to a survey by Fenae (National Federation of Individuals Associations from Caixa), 45 collective actions in the states try to obtain exemption or non-levy of IR on extra contributions.
Unlike the processes of Postalis participants, in these, the requests are for there to be no limitation of 12% of income. They also charge refunds for amounts paid.
State-owned private pension entities say it is difficult to quantify the value of the shares now, as it depends on the value of each contribution paid by pension fund participants.
The president of Funcef, Gilson Nascimento, says that the reduction or collection of the IR has no financial impact for the foundation, but creates a great demand for work. “Every month we receive commands from court decisions that order deduction. Each group that is formed and gets the right, generates an operational to make the guides separately and pay the tax in court.”
Caixa’s closed pension foundation asked the IRS to review the 2017 consultation. Funcef’s decision was also influenced by the fact that the TNU (National Class for the Uniformization of Courts) had already reached an understanding that extraordinary contributions should have the same treatment common tax.
With the approach of the annual IR declaration period, the divergences regarding the deduction of extra payments are again a problem for the entities, as the reports will also include the injunctions that granted the abatement.
Among Petros participants, there are also individual and union actions with decisions in favor of the rebate, provided that the limit of 12% of earnings is respected. The Petrobras employee fund says it complies with both legislation and court rulings.
Three of the largest funds in the country, Petros, Funcef and Postalis (owned by Correios employees) had to implement deficit-equating programs in the mid-2010s to cover holes generated by the fall in the value of Brazilian assets and bad investments made during PT administrations. .
With poor performance in the last two years, the sector is asking the government for a longer period of time to cover deficits without having to resort to new extraordinary contributions. They claim that investments were affected by the pandemic and assess that the better scenario in 2022 will compensate for the losses.
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