Last May 10, a judge in a county in the interior of São Paulo, exempted a company from paying the 10% contribution on the FGTS balance in terminations of employment contracts without just cause. Exempted a company from paying the 10% contribution on the FGTS balance in the termination of employment contracts without just cause.
The constitutionality of this contribution had already been confirmed by the STF through ADI 2.556 and ADI 2.568. However, the magistrate understood that there are new facts and arguments not examined in those actions.
Besides the exhaustion of its object, the judge considered the current deviation of the contribution’s purpose, accepting the thesis of supervening unconstitutionality:
“Thus, the destination of the tied contributions has been diverted; instead of being incorporated into the FGTS, it is destined to reinforce the primary surplus, through the retention of the Union, besides being used to finance other state expenses, such as the Minha Casa Minha Vida program.
As the tax was not created to support social policies or strategic actions of the Government, but to make possible the payment of inflationary losses in the Fund’s individual accounts, its deviation confirms the hypothesis of loss of validity of the contribution due to the exhaustion of its underlying purpose.
Therefore, what could not be discussed at the time of the judgment of the Direct Unconstitutionality Action nº 2.556/DF is now proven, and coherently with the understanding of this court, I have that the loss of purpose of the referred contribution has occurred, which is proven by its use for different purposes than the one it was created for”.
It also considered that Constitutional Amendment 33, of December 2001, by limiting the calculation basis of general contributions, revoked LC 110.
Based on these arguments, the judge not only granted the injunction to suspend the enforceability of the contribution, but also granted the restitution of the amounts since 2012, a period not yet reached by the statute of limitations.
At the STF, ADIs 5050, 5051 and 5053 are awaiting trial, also based on changes to the factual reality subsequent to the judgment of ADI 2.556 in 2012.