The pension contributions made by the employer or company focuses on income paid, although there is no employment. In hearing held on 6/2, the First Panel of the Superior Labor Court ordered the payment of contribution on the total value of approved agreement in court between a waiter, the company JR Entertainment Ltda. and Excellence - Cooperative Working Professionals in Business Administration.
The waiter had labor complaint filed against the companies asking for acknowledgment of employment and payment of reflexes claiming to have been employed between April 2006 and April 2008. In conciliation hearing, the parties entered into an agreement, approved in court, establishing the payment to the waiter, as compensation, of $ 18,000 in 11 monthly installments.
Bitter, the government appealed to the Regional Labor Court of the 2nd Region (SP), requesting the payment of social security contributions on the total amount of compensation agreed. The TRT-2 understood that, because it is a "civil indemnity for damages," character without pay, the collection of the contribution would be unwarranted and upheld the sentence.
The Union appealed to the TST arguing that "social security contributions levied on payments arising from any relationship service on the part of individuals, even if there is an employment relationship." According to the Union, the sentence is contrary to article 22, paragraphs I and III, of Law 8.212/91 (Law of Social Security benefits), which requires companies to effecting the payment of social security contributions of 20% "of the total remuneration paid or credited in any capacity during the month, the insured individual contributors who provide services to you. "
Claimed also offense to Article 195 of the Constitution, which provides that the payment of social security contributions made by companies is based on the "payroll and other employment income paid or credited in any way, the person that you pay service, even without employment. "
In voting, the rapporteur of the TST process, Minister Hugo Scheuermann, stressed that the social contribution made by an employer or company focuses on income paid, yet there is no recognition of employment relationship. He noted that the constitutional provision refers to the worker, not the employee, "which demonstrates the lack of necessity of employment as a condition for the incidence of social security contributions."
The minister recalled that the Guidance Jurisprudential 368 SDI-I of TST considers the contribution due on the total value of the agreement approved in court, regardless of the recognition of an employment relationship, if there is no breakdown of the parcels subject to the impact of social security contributions. A simple statement that was established between the parties payment under indemnity does not, according to the rapporteur, the power to exclude the tax incidence.
"The social security contribution is tax. Therefore, pursuant to Internal Revenue Code, the taxable event can not be changed by the will of the parties, but can only be determined by the law," he argues. The Rapporteur explained that, while not focusing social security contributions on truly indemnity in case the Court examined the mere indication of the compensatory nature of the plot was not configured sufficiently to push her away.
"Resorting to the Labour Law for the definition of the triggering event requirement, it can be stated that the lack of employment refers directly to the absence of contract between employer and employee, which does not preclude the provision of services. So discharge between the parties to a legal relationship does not preclude the conclusion that there is a working relationship, although possible, because in this case there is a financial reward to the consideration agreed, "said the minister.
Unanimously, the Panel upheld the appeal, determining the payment of social security contributions on the total value of the object agreement approved in court. According to the judgment, the rate of 20% payable by the policyholder service will not be deducted from the adjusted amount between the parties, but only calculated on the basis of agreed. Since the 11% quota-share regarding the individual taxpayer shall be discounted and the amount retained by the company, liable to tax, so this make the transfer to the Union