In a recent virtual trial the Supreme Federal Court ruled that “the levying of the social security contribution upon the maternity salary is unconstitutional” (RE 576.967 theme 72 of General Repercussion). The decision is biding to the other instances of the Judiciary.
In his vote, the reporting Justice Roberto Barroso, based its vote on 3 arguments to justify the non-taxation of the maternity salary: (i) the payment of such benefit would not be usual, but rather eventual; (ii) any change in the financing of the Social Security would depend on a complementary law, and could not be done by ordinary law (Law No. 8,212 / 91); and (iii) the taxation of the maternity salary would result in a greater discrimination between men and women in the labor market, in view of the greater burden attributed to hiring of women.
After the publication of the decision issued by the Supreme Court, the thesis will become mandatory by other instances of the Judiciary.
This STF precedent represents a turning point in the previous understanding of the Courts, especially the STJ, which understood for the taxation of the maternity salary. Thus, for the companies that have ongoing lawsuits on the subject, it is important to ensure that the STF’s new judgment is observed and for the lawsuits that have already became final, it is also possible to evaluate the suitability of any rescission action. For taxpayers who have not promoted the judicial discussion on the matter yet, it is worth to analyze the convenience of doing so now.
The KLA tax team is available for further clarification on this matter.