The 8th Panel of the Federal Regional Court of the 1st Region (TRF1) denied the request of a company that intended to stop collecting social security and third-party contributions (for example, education salary, Incra, Sistema S) on the installments discounted from its employees relating to medical and dental assistance plans, with the corresponding compensation and monthly interest on arrears equivalent to the Selic rate.
The Board upheld the first instance decision which concluded that the non-collection of these taxes would constitute unjust enrichment of the plaintiff company, which appealed the ruling.
Employer social security contribution is the collection, by the company, of social contributions to the National Social Security Institute (INSS employer) based on its payroll calculation.
When analyzing the appeal at the TRF1, the rapporteur, federal judge Novély Vilanova, explained that, according to Law 8,212/1991 (which provides for social security) and the case law of the Superior Court of Justice, the employee's social security contribution is included in his/her payroll as an item of the company's remuneration and the basis for calculating the employer's contribution. Therefore, the discounts corresponding to the employee's costs in the medical and dental care plans are part of the employee's remuneration.
In the case analyzed, the judge emphasized that “the amounts corresponding to the Social Security Contribution owed by the employee are credited to their payroll as amounts forming part of their remuneration and are then debited to settle their tax obligations, thus forming part of the calculation basis for employer social security contributions”.
Unanimously, the Panel upheld the sentence in accordance with the rapporteur's vote.
Case: 1049610-97.2020.4.01.3800
Trial date: 08/08/2022
Publication date: 08/15/2022
RS/CB
Social Communication Advisory
Federal Regional Court of the 1st Region