The 1st Section of the Superior Court of Justice (STJ), in a judgment submitted to the repetitive appeal procedure, established the understanding that extraordinary contributions paid to closed supplementary pension entities may be deducted from the individual income tax (IRPF) calculation base, provided the general limit of 12% of taxable income, set forth in Article 11 of Law No. 9,532/1997, is observed.
The decision standardizes the national controversy and now binds lower judicial instances, providing legal certainty to millions of participants and beneficiaries of closed supplementary pension plans.
Complementary Law No. 109/2001 establishes that closed supplementary pension entities may receive:
- Regular contributions: intended to fund benefits provided in the plans;
- Extraordinary contributions: aimed at addressing deficits, past service, or other actuarial balance needs.
IRPF legislation, in turn, particularly Article 11 of Law No. 9,532/1997, authorizes the deduction of contributions made to private pension entities up to the limit of 12% of taxable income. The legal debate centered on whether such deduction covered only regular contributions or also extraordinary contributions.
The National Treasury Attorney General’s Office (PGFN) maintained that only contributions directed to the direct funding of pension benefits could be deducted, and that extraordinary contributions, typically linked to covering actuarial deficits, had a distinct nature and therefore could not reduce the IRPF base.
Additionally, the national treasury argued that including extraordinary contributions would expand a tax benefit without specific legislation, in violation of Article 150, §6, of the Constitution.
The reporting justice, Minister Benedito Gonçalves, rejected the National Treasury’s argument by recognizing that extraordinary contributions are integral to the funding logic of the supplementary pension system, being essential for the actuarial balance of the plans; and that there is no improper creation or extension of a tax benefit, as the law does not differentiate the nature of contributions, merely establishing the 12% ceiling.
The Minister also noted that the Judiciary cannot alter this limit but can ensure correct interpretation of the rule, so as to recognize deductibility within legal parameters.
Thus, in respect of the principle of strict legality, the STJ concluded that any contribution intended to fund supplementary pensions, whether regular or extraordinary, falls within the tax benefit, provided the legal ceiling is observed.
The precedent reinforces the understanding that closed supplementary pensions, due to their mutual and actuarial nature, depend on contributions that are not limited to direct benefit funding. Therefore, the deductibility of extraordinary contributions harmonizes with the legal framework and with the principle of systemic coherence of the pension plan.
The decision represents a significant milestone for taxpayers, pension entities, and the balance of the supplementary pension system itself, as it produces immediate tax effects and opens the way for significant refund requests in the coming years.