The Superior Court of Justice (STJ) has scheduled for judgment on August 14, 2024, a matter of significant impact on the calculation of social security contributions owed by companies and levied on the payroll.

This is a judicial discussion regarding the possibility of excluding from the calculation basis of the employer’s social security contribution (and consequently, SAT/RAT and third parties) the amounts withheld by the company from its employees as income tax and social security contribution owed by the employee; as well as the co-payment amounts deducted from employees (transportation vouchers, meal vouchers, and health/dental plans, among others).

Currently, companies are required to collect social security contributions on the total amount paid to their employees, without considering the withholdings and deductions made. However, (i) a portion of this amount corresponds to the income tax withheld at the source, which is a tax owed by the employee, (ii) another portion corresponds to the social security contribution also owed by the employee but withheld by the paying company; and (iii) part of the amount paid to employees is deducted by the company due to co-payment for health plans, dental plans, transportation vouchers, depending on the policy of each company.

Therefore, understanding that such a tax collection is undue, many companies have sought the judiciary through the filing of writs of mandamus to ensure their right to collect contributions only on the amount calculated after withholdings and deductions.

This is because taxpayers believe that the taxes withheld (IRRF and INSS) by employers by legal obligation (tax responsibility) cannot be considered remuneration for the purpose of calculating social security contributions. These withheld amounts correspond to public revenue destined for the Union, so the tax requirement on such amounts characterizes the collection of tax on tax.

Similarly, the discounts on co-payment benefits, corresponding to costs shared between the company and employees, such as transportation vouchers, meal vouchers, health plans, among others, also do not have a remunerative nature. In this case, Law No. 8,212/91 expressly provides in its article 28, §9º that such benefits do not constitute a salary contribution and, therefore, are not subject to the social security contribution owed by the employer.

The Supreme Federal Court, when judging Topic 1221, ruled that the matter is infraconstitutional and did not have general repercussions. It is therefore up to the STJ to standardize the understanding on the issue, having affected as a repetitive appeal REsp 2.005.029, Topic 1174, which was included in the judgment agenda for next Wednesday (14/08/2024).

At this time, the STJ will analyze, in a binding manner for all taxpayers with legal action, whether the calculation basis of the contributions owed by companies should correspond to the full amount of remuneration paid or should correspond to the amount calculated after the deduction of withheld taxes (IRRF and INSS employee) and other deductions resulting from co-payment, as they do not have a remunerative nature.

The Tax Law Department of Marins Bertoldi Advogados remains attentive to the developments of the issue and is available to clarify any doubts on the subject and delve deeper into each company’s reality.

By Enrique Grimberg Kohane