An issue that sometimes goes unnoticed by the employer is the non-incidence of social security contribution (CPP) on payments during leave due to illness or accident (first 15 days), indemnified prior notice, and on maternity pay. In general, the reason why this point is generally not observed is due to the fact that it is not expressed in the legislation, the issue being defined by the Judiciary.
The emergence of this discussion is due to the fact that payments made in the first fifteen days of leave due to illness (until the benefit is borne by Social Security), as well as those related to indemnified prior notice and maternity salary, have an indemnifying nature and non-remunerative, so that there would be no mention of the levy of social security contributions on these amounts.
In this sense, given the inertia of the legislator, several debates were initiated and many lawsuits were filed that dealt with this need or not. Over the years, today the subject has been largely pacified by the Superior Courts.
Even so, not only is it common for employers to pay said contribution due to lack of knowledge, but there are also lawsuits in which the National Treasury remains firm in trying to recognize the flexibility of this contribution. This is the case of Appeal No. 1003849-35.2019.4.01.3814, in which there was a judgment favorable to the employer.
The appeal under discussion originated from a Judgment on a Writ of Mandamus related to the refund of overdue tax. Judged on 02/25/2022, the 7th Panel of the TRF1 ratified the understanding on said unenforceability recognized in the 1st instance, mentioning the judgments of the STJ and STF to support its decision, and finally being partially provided only for the restitution to be given with portions relating to taxes of the same type and the same constitutional destination.
Regarding the first fifteen days of absence due to illness (or accident), the distinguished Rapporteur Gilda Sigmaringa Seixa based her explanation on the topic 738 of the STJ, in which the thesis was signed that “on the amount paid by the employer to the employee during the first fifteen days of leave due to illness, the social security contribution is not levied, as it does not fit into the hypothesis of levying the tax, which requires a sum of a remunerative nature.”
In the same step, the r. The judge cited REsp 1,230,957/RS, under the systematic of repetitive appeals, which has long recognized the unenforceability of the social security contribution levied on the indemnified prior notice.
With regard to the maternity salary, the decision RE 576.967 of the STF, object of item 72, was brought up, in which the thesis was signed that “the incidence of social security contribution paid by the employer on the maternity salary is unconstitutional”. In fact, the communication of this decision was recently – on 03/30/2022 –, sent to the Federal Senate due to the recognition of said unconstitutionality.
It is concluded, therefore, that this is an issue that has already been overcome by the Judiciary, but that still requires careful attention. Not only to be aware and correctly collect the amounts as a social security contribution correctly, without being harmed by lack of knowledge, but mainly because of the real possibility of the company (or individual employer) being surprised by a clash against the National Treasury in any lawsuit, being essential to know the judgments mentioned for the best possible conduct of the process.
