Since 2001, the Complementary Law 110/2001 obliges employers, in case of termination of the Employment Contract without just cause, to collect an additional social contribution of 10% on the FGTS balance, in addition to the 40% paid to the employee. The so-called additional contribution was created to cover the losses from the Summer (1989) and Collor I (1990) plans, but it has already lasted 17 years.
But recently, last December, the Regional Labor Court of the 5th Region issued a favorable decision regarding the unconstitutionality of the additional 10% on the FGTS fine.
It is true that since 2001, when the additional was created, some theses favorable to the companies have been discussed, but they were eventually rejected by the Federal Supreme Court (STF). The thesis now accepted by the TRF 5, however, is a new thesis, contrary to the constitutionality of the contribution.
This is a decision in the case 0807214-32.2018.4.05.8300The case was judged by the rapporteur Dr. Rubens Canuto, according to which the constitutional incompatibility of the contribution pertinent to the additional 10% of FGTS established by the complementary law 110 of June 2001 and the changes brought by the Constitutional Amendment number 33/2001, of December 2001, is being discussed.
The big difference between the new thesis and the previous ones is that the discussion is not about the unconstitutionality of the rule in its origin (as in the 1st thesis) or the loss of purpose (2nd thesis), but about the supervenient non-receipt of Complementary Law 110/01 by EC 33/2001.
In short, the EC would have altered the calculation bases (materiality) liable to taxation as social contribution and intervention in the economic domain, which, according to §2, clause III, line “a” of art. 149 of CF/88, would be:
- billing;
- gross revenue or o;
- transaction value
Thus, the economic bases (calculation basis) of the Complementary Law would be in dissonance with the exhaustive list of EC 33/2001, so that the LC would not have been accepted by the new constitutional rule.
In other words, as the FGTS contribution rates are levied on the “amount of all deposits due to the Severance Premium Reserve Fund – FGTS, during the effectiveness of the employment agreement, plus the remunerations applicable to the linked accounts” and on the “remuneration due, in the previous month, to each worker, including the installments dealt with in article 15 of Law no. 8,036, May 11, 1990”, they would be out of the taxable list of § 2, III “a” of article 149 of the Federal Constitution/88. 15 of Law no. 8.036, of May 11, 1990″, would be outside the exhaustive list of § 2, III, “a”, of art. 149 of the CF/88 that came into force with EC33/2001
The issue is subject to general repercussion in RE 603.624-SC, classified as theme 325 (Subsistence of the contribution to SEBRAE, after the advent of Constitutional Amendment 33/2001) pending trial at the STF with conclusion status with the Rapporteur for deliberation since 03/16/2018. However, as there was no express determination for the suspension of actions that deal with the subject, the TRF 5 judged the merit of the issue and other courts may do so.
Since this is a constitutional issue, the court’s decision may include the compensation and restitution of the amounts paid in the last five years, after the final and unappealable decision.