The Supreme Federal Court (STF) has decided that, from September 15, 2020, the social security contribution from companies on the one-third constitutional vacation allowance is due. This decision establishes a definitive milestone in how social security contributions are calculated and will directly impact companies across the country.
Context and STF Decision
The STF Plenary, by majority decision, established that the publication of the judgment summary for Extraordinary Appeal (RE) 1072485 is the starting point for collecting social security contributions on the one-third vacation allowance. This understanding reformulates previous case law and reinforces the need for companies to adapt to the new contribution rules.
In August 2020, the Plenary ruled that it is legitimate to impose social security contributions on the one-third constitutional vacation allowance. Later, in December 2023, Minister André Mendonça ordered the national suspension of all ongoing judicial and administrative tax processes discussing the issue, awaiting a final STF decision on the modulation of the effects of this ruling.
Change in Understanding and Modulation of Effects
The STF decision alters the previous understanding of the Superior Court of Justice (STJ), which in 2014 had decided that the employer’s social security contribution should not be applied to the vacation allowance. However, with the recognition of general repercussion and the ruling on the merits of RE 1072485, there was a change in the predominant understanding of the courts.
STF President, Minister Luís Roberto Barroso, emphasized that, out of respect for legal certainty and the integrated system of precedents, it is essential to modulate the effects of the ruling. This understanding was supported by Justices Cármen Lúcia, Rosa Weber (retired), and Justices Dias Toffoli, Luiz Fux, Edson Fachin, and Nunes Marques.
Impact on Companies
From now on, companies must be aware of the new obligation to include the one-third constitutional vacation allowance in the social security contribution calculation base. Contributions already paid and not challenged in court by September 15, 2020, will not be refunded by the Union, reinforcing the importance of adequate social security planning.
Those who legally contested that contribution and had existing cases as of September 15, 2020, may recover the relative amounts of these payments up to the temporal limit established by the Supreme Court.