The Superior Court of Justice (STJ) unanimously ruled that Income Tax (IR) and the employee’s social security contribution, deducted directly from the payroll, as well as amounts related to benefits such as transportation vouchers, meal vouchers, food allowances, and health care plans, must be included in the calculation base of the employer’s social security contribution (theme 1,174).
The prevailing opinion was that of the rapporteur, Minister Herman Benjamin, who argued that the fact that these amounts are transferred to the tax authorities does not alter their nature as part of the salary or contribution salary. This perspective considers that such values represent a mere collection technique, not changing the calculation base of the employer’s social security contribution. It is important to note that this judgment was carried out under the repetitive appeals system, meaning that the STJ’s ruling must be uniformly applied by all courts in the country in similar cases.
During the trial, the taxpayer’s party argued that the employee’s social security contribution and the withheld income tax should not be considered remuneration, as they do not have a compensatory nature for the provision of services, considering that these amounts only transit through the employees’ accounts and are subsequently transferred to the tax authorities.
However, the STJ panel followed the rapporteur’s opinion, establishing the thesis that the amounts related to the mentioned benefits and deductions constitute a collection technique that does not alter the concept of salary or contribution salary, thereby maintaining their inclusion in the calculation base of the employer’s social security contribution.
In light of this, employers must pay close attention to the new guidelines established by the STJ for the composition of the social security contribution’s calculation base. The standardization of this understanding reinforces the need for strategic tax planning that is attentive to jurisprudential changes.