STF sets thesis on the incidence of social security contributions on the third of holidays

In the judgment of Extraordinary Appeal 1,072,485, linked to Theme 985

In the virtual session of August 31, 2020, the STF plenary session, by majority, in the judgment of Extraordinary Appeal 1,072,485, linked to Theme 985, in which the legal nature of the constitutional third of vacations, indemnified or taken, was discussed, for the purpose of levying the employer’s social security contribution, he defined the following thesis: “the levy of social contribution on the amount satisfied as a constitutional third of vacations is legitimate”, following the terms of the vote of the Rapporteur Minister Marco Aurélio, defeated by Minister Edson Fachin.

In the specific case, the Second Panel of the TRF of the 4th Region unduly consigned the incidence of social security contributions on the amounts paid by the employer to the employee as a constitutional third relating to vacations, among other items. The Federal Government’s extraordinary appeal, which was inadmissible at the beginning, based its argumentative reasoning, among other aspects, on the remunerative nature of the constitutional third of vacations. This would demonstrate the suitability for incidence of the social security contribution, importing different understanding, according to the Union, in the granting of tax exemption without normative provision.

The issue in this judgment centered on the third of vacations, especially with regard to the interpretation of item I, of article 195, of the Constitution regarding the incidence of social contribution by the employer, company or equivalent entity to finance social security. This is because the STF had already decided on the incidence of social security contributions on the amounts paid by the employer to the employee in the first fifteen days of sick pay (Theme 482) and on the amounts paid as indemnified notice (Theme 759), in which, general repercussion was not recognized because they are infraconstitutional matters.

Minister Marco Aurélio’s vote was based on two assumptions to define the legitimacy of the levy of the contribution on amounts paid to employees: remuneration nature (income paid as a result of a work contract in progress, except for indemnity amounts) and the usual amount of funds ( periodicity in the receipt of amounts as opposed to eventual ones, devoid of predictability).

This reasoning was based on the jurisprudence of the STF, particularly with regard to the recognition of the incidence of the social security contribution on the 13th salary, in view of its remuneration (Summary 688); removal of the levy on amounts paid in cash, as transportation vouchers, due to their indemnity character (RE 487.410); and the understanding that habituality is essential for the incidence of social security contributions (RE 565.160).

Thus, Minister Marco Aurélio understood that the contribution was due because the constitutional third of vacations is a periodically earned amount and bears a remunerative character of all that was perceived in the month of vacation enjoyment.

Minister Edson Fachin’s dissenting vote on the unconstitutionality of the incidence of the social security contribution on the third of holidays was based on the infraconstitutional nature of the discussion associated with the incidence of taxes based on the nature of the budget; positioning of the STJ for the removal of the incidence of the social security contribution on the constitutional third of vacation due to its indemnity nature (REsp 1,062,530 AgRg and Theme 479); and the fact that even if a constitutional matter were envisaged, the positioning would be due to the non-incidence of the social security contribution, because of the reparatory nature of the constitutional third of vacations.

By Wilson Sales Belchior