The Third Panel of the Superior Court of Justice (STJ) decided that profit and results sharing (PLR) is an item of an indemnatory nature and therefore should not enter into the calculation base of alimony/child support, since it does not make up the worker’s habitual remuneration.
The case analyzed sought to reverse a ruling of the Court of Justice of São Paulo which established that it is not possible to include PLR in the calculation of the support owed by the father, on the grounds that such amount does not constitute salary income.
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The rapporteur, Justice Villas Bôas Cueva, recalled that the Third Panel established its understanding, in a leading case reported by Justice Nancy Andrighi, dissociating profit sharing from remuneration, based on Articles 7, XI, of the Federal Constitution and 3 of Law No. 10,101/2000.
“The item known as profit sharing has an indemnatory nature and is excluded from the deduction for the purposes of alimony/child support, since it is a transitory item dissociated from the remuneration habitually received, subject to the fulfillment of productivity targets established by the employer,” said the rapporteur.
Villas Bôas Cueva also mentioned the position of the Fourth Panel, in which, on the contrary, the understanding has prevailed that PLR has a remuneratory nature and must form part of the calculation base of support.
Profit and results sharing (PLR)
The justice highlighted that the purpose of PLR is to encourage companies to adopt plans for employee participation in the success of the business, without the burden of this benefit being conceptualized as salary.
“Items of an indemnatory nature, of which PLR is an example, do not entail a financial increase for the support provider, since their purpose is only to make up for any prejudice of a temporary character, and they should be excluded from the calculation base of the support debt,” he added.
Exception
However, according to the rapporteur, there is an exception to the rule: when the needs of the support recipient are not met by the amount regularly set as alimony/child support, the increase of the support item by PLR is required.
“The receipt of PLR does not produce an impact on support, except for situations in which there is a supervening change in the binomial of need and possibility, a readjustment that must be analyzed on a case-by-case basis,” he stated.
The exception cited by the justice was applied to the case under analysis. Thus, the Panel granted the appeal filed by the minor so that the records return to the court of origin and evidentiary proceedings be carried out to demonstrate whether the support set is insufficient.
“The appealed ruling, based on the premises now set forth, did not analyze the real need of the support recipient and the true possibility of the support provider, which, under the terms of the case law of the STJ, could, possibly, constitute an exception to the rule that PLR does not make up support, which is why the records must return to the court of origin so that, in light of the body of evidence and the indispensable adversarial proceeding, it be ascertained whether it is feasible to readjust the calculation base of the support debt in the specific case,” the rapporteur decided. The number of this case is not disclosed by reason of judicial secrecy.
Source: STJ
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