“The social contribution borne by the employer is levied on the employee’s habitual earnings, whether prior or subsequent to Constitutional Amendment 20/1998.” This general repercussion thesis was established by the plenary of the Federal Supreme Court (STF) in the judgment of Extraordinary Appeal (RE) 565160. This matter involves almost 7,500 similar cases.
In this case, the company Nossa Senhora da Glória sought a declaration of the nonexistence of a tax relationship between it and the National Social Security Institute (INSS), with the purpose of not being required to pay the social security contribution levied on the total of remunerations paid to its employees, but only on the payroll of salaries.
The company intended that the social security contribution not be levied on the following amounts: additional payments (for hazardous and unhealthy work), gratuities, bonuses, night-shift premiums, allowances and travel per diems (when they exceed 50% of the salary received), commissions and any other amounts paid habitually.
The reporting justice, however, voted to deny the appeal. According to him, the employee’s habitual earnings are incorporated into the salary for purposes of the social security contribution.
At the outset, the reporting justice stated that Article 195 of the Federal Constitution (CF) was amended by Constitutional Amendment 20/1998, which began to provide that “the contribution is levied on the payroll of salaries and other labor earnings paid or credited on any basis to the natural person who provides services to it, even without an employment relationship.”
The justice pointed out that, before Constitutional Amendment 20/1998, Article 201 (then paragraph 4 and, subsequently, paragraph 11) began to indicate that the employee’s habitual earnings on any basis shall be incorporated into the salary for purposes of the social security contribution and the consequent repercussion on benefits, in the cases and in the manner provided by law.
Read the full article on the STF website.
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