Through Consultation Solution COSIT No. 27/2023, the Federal Revenue stated that the social security contribution should be levied on extended maternity leave as provided for in Law No. 11,770/2008.
The issue arose after the Supreme Federal Court ruled¹, in a general repercussion, that the imposition of the employer’s social security contribution on maternity leave pay was unconstitutional. The decision addressed the remuneration paid to the insured for 120 days, as provided in Article 7, Clause XVIII, of the Federal Constitution.
However, companies that adhere to the “Empresa Cidadã” (Citizen Company) program, which extends maternity leave by an additional 60 days in exchange for a deduction in their Corporate Income Tax (IRPJ), were not expressly included in the Superior Court’s decision. For this reason, they have sought legal action to obtain a declaration of unconstitutionality regarding the extended benefit as well.
Despite some courts ruling that the extended maternity leave should not be subject to taxation, applying the same reasoning as that established by the Supreme Court, the Federal Revenue has defined that the decision does not cover the remuneration paid during the extension of maternity leave for an additional 60 days. This is because it does not have the nature of a social security benefit since it is not funded by Social Security and has its own legal framework distinct from maternity pay.
The position of the Federal Revenue discourages the hiring of women and conflicts with the main reasoning of the leading case, which defended the principle of equality, establishing that the imposition of taxation only when the worker is a woman and a mother creates a general obstacle to the hiring of women due to purely biological reasons, as it makes motherhood a burden. Such discrimination is not supported by the Constitution, which, on the contrary, establishes equality between men and women, as well as the protection of motherhood, family, and the inclusion of women in the labor market.