The levying of social security contributions due by companies on various amounts paid to their employees, such as prior notice, health and safety bonuses, overtime and vacation pay, among others, has been a major issue for the courts in recent years. This is because taxpayers believe that these amounts do not have a salary nature, as they do not correspond to a consideration for the service rendered, but rather that they have a compensatory nature, and therefore cannot be included in the calculation basis for this tax.

Among the amounts disputed in court, the vacation bonus, in particular, has suffered some setbacks. Since the matter came before the STF in 2011, the Court had been denying general repercussion to the discussion, on the grounds that it was not a constitutional matter. Thus, it was up to the STJ to take a stand on the matter, and in February 2014, in the judgment of REsp 1.230.957, under the system of repetitive appeals, the Justices of the Superior Court of Justice ruled that the “additional vacation pay would be compensatory in nature and would not constitute the employee’s usual earnings, which is why the employer’s social security contribution could not be levied on it“.

It so happens that, after years of the Judiciary’s settled position in favor of taxpayers, ruling out the social security contribution on the third of vacation pay, the STF decided to change its position on the issue, having recognized the general repercussion of the matter and handed down a judgment unfavorable to taxpayers, for the inclusion of the third of vacation pay in the basis for calculating the employer’s social security contribution. The minutes of this trial were published on 15/09/2020.

In the face of this decision, motions for clarification were filed so that the Court could rule on its effects, given that many taxpayers had filed lawsuits and already had favorable final decisions handed down based on the STJ’s previously settled position.

In the virtual session held on Wednesday (06.12), the STF Plenary, in the judgment of the appeal, decided that the social security contribution, employer’s share, levied on the third of vacation pay will only become due by taxpayers who had litigated the issue, as of 09/15/2020, date of publication of the minutes of the judgment of the theme (RE 1.072.485, Theme 985), with the exception that “contributions already paid and not challenged in court by the same date will not be returned by the Union.” The ruling, which has yet to be published, reflects a victory for taxpayers.

The Tax Law Department at Marins Bertoldi Advogados is available to answer any questions you may have.

By Daiana Oliveira and Ariana de Paula Andrade Amorim