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Curt decision may reduce the tax burden of employers' social security contributions
The high tax burden in the country affects the Brazilians in all areas, from the purchase of a candy to a plane ticket. There is no way to the citizens to escape the numerous taxes that impact the prices of products and services.

Besides the embedded taxes on consumption, there are still those on the root. The worker with a regular professional license has discounted from his paycheck between 9% and 11% for contribution to the National Institute of Social Security (INSS), for the financing of social security. In addition to the contribution payable by the employee, the social security is financed mainly by companies that contribute over the revenue or billing, on the profit or the payroll, in accordance with article 195 of the Federal Constitution.

For businesses in general, the INSS contribution corresponds to 20% of the payroll. According to a survey published in 2011 by the Bureau of Labor Statistics of the United States (BLS), labor costs in Brazil correspond to 32.4% of the cost of labor in the domestic processing industry and put Brazil in the top countries with the highest rate of labor costs in the world.

Recently, judicial decisions are restricting the scope of the incidence of employer contributions and avoiding undue increase of the tax burden borne by businesses. According to Paulo Pimenta, consultant of Sescap from Londrina, the Superior Court Justice (STJ), on February 27, 2013, dismissed an action with the understanding that the employer collection of 20% does not focus on vacation payment and the maternity pay. "In the case of vacation payment, the employee receives a certain amount and there is no effective provision of services in the period, not fitting the concept of labor and, therefore, can not integrate the basis of calculating the employer contribution" explains.

Although the Supreme Court's decision represents an important step to clarify the issue and serves as a parameter to guide others judged, the lawyer Marlon Santos Peterson explains that "the decision of the Supreme Court has revived the debate that also covers other sums payable to the employee and sets a strong favorable precedent to business environment. Nevertheless, the understanding can still be modified by the Superior Court or the Supreme Court. "
With regard to maternity pay, it is treated as a decision emblematic, once, until then, this amount had been considered as salary. "By holding the idea that maternity pay does not fit the concept of compensation and assuming that the normative precept can not transmute the legal nature of the funds, the Supreme Court has opened the way for the revision of the law," said Santos.

From the point of view of the employer, this reduction in the base becomes relevant, since the exclusion of indemnities of base composition calculation of employer social security contribution corresponds to a reduction of the amount to be paid monthly by the companies. However, "despite the doctrine and jurisprudence are being consolidated in favor of taxpayers, it does not mean that companies are allowed to fail to make the payment of employer social security contributions on those items unilaterally, as in this case, no collection risk own tax plus penalty and interest by the Federal Tax Administration", warns the lawyer Paulo Pimenta. "The management of a lawsuit offers legal certainty to taxpayers, since the compensation or claim for refund shall be made only after the final and unappeasable decision," added Santos.

Source: Association of Consulting Companies, Consulting, Accounting and Skills Londrina - Sescap-Ldr
Version: Grazielle Segeti



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