Parafiscal contributions collected on behalf of third parties, such as education allowances and contributions to INCRA, SEBRAE, the Air Fund and the so-called S system (SESC / SENAC, SESI / SENAI, SEST / SENAT, SESCOOP, etc.) are supported by art. 149 of the Federal Constitution (CF), according to which it is exclusively up to the Union to institute social contributions, intervention in the economic domain and of interest to the professional or economic categories, as an instrument of its performance in the respective areas.
In addition, said social contributions are calculated based on the value of the company's payroll, according to art. 240 of the Constitution and the governing legislation of each entity.
However, art. 4 of Law 6,950 / 81 established a maximum limit of 20 (twenty) times the highest minimum wage in force in the country for calculating social contributions due to social security (caput) and third parties (single paragraph).
Let's see:
Art 4 - The maximum contribution salary limit, provided for in art. 5 of Law 6,332, of May 18, 1976, is fixed at an amount corresponding to 20 (twenty) times the highest minimum wage in force in the country.
Sole paragraph - The limit referred to in this article applies to parafiscal contributions collected on behalf of third parties.
Despite art. 3 of Decree-Law no. 2,318 / 861 has lifted the aforementioned limitation in relation to contributions due to Social Security (employer contribution and additional to the RAT), it appears that the limitation remains in effect in relation to parafiscal contributions due to third parties. < br />
The Superior Court of Justice has recent decisions favorable to taxpayers, such as: REsp 1,570,980, REsp 1570980 (Rapporteur Min. Napoleão Nunes Maia Filho, DJe 03/04/2020 and 05/08/2019), REsp 1241362 (Rapporteur Min Assusete Magalhães, DJe 08/11/2017), and REsp 1,439,511 / SC (Rapporteur Min. Herman Benjamin, DJe 06/25/2014), all adopting the understanding enshrined in the judgment issued in REsp nº 953742 / SC (Rapporteur Min. José Delgado, 1st Class, DJe 10/03/2008), in the sense that the legal limit for the calculation basis of contributions due to third parties remains in effect until today.
Documentation necessary to request that the collection cease and repetition of any overdue balance:
It should be noted that the right to non-payment / credit for companies that paid more than 20 (twenty) minimum wages is only possible through a lawsuit, requiring the presentation of the following documents:
A) Declarations (GFIP / DCTFWeb) and respective proof of delivery that demonstrate the closing value of the monthly payroll and the amount to be collected as contributions from third parties, of the last 5 (five) years.
B) Guides and proof of collection of contributions from third parties (GPS / DARF / Social Security), of the last 5 (five) years;
C) Summary of the payroll, information from the FGTS Collection Company System and Social Security Information (SEFIP) and INSS collection guides, in addition to a summary of events considering the incidences and non-incidences for the composition of the calculation base.
By Alvaro Daira - lawyer at Gegers Advogados
