Change in understanding regarding contributions to the "S System"

The 1st Section of the STJ overturned the limit of contributions paid by companies to the “S System”, deciding that the calculation basis of the so-called third-party contributions should not be restricted to 20 minimum wages but should be calculated on the company’s payroll.

It is important to note that this decision alters the existing jurisprudence, which was generally favorable to taxpayers. The topic, analyzed through repetitive appeal, must have its decision followed by lower instances.

We also highlight that there was a modulation of effects. That is, taxpayers who filed lawsuits on the subject until the start date of deliberations in the Court (by 25 October 2023) and obtained a favorable decision in their processes, may pay the contribution based on the limit of 20 minimum wages until the publication of the judgment minutes. However, following the aforementioned judgment, the limit will apply to all taxpayers. Therefore, it is important for companies to update the systemic parametrization of the payroll so that the value is collected on the full salaries of the employees.

Furthermore, for companies that do not fit into the situation mentioned above, that is, applied the contribution limit without a favorable decision or filed lawsuits after the mentioned deadline, the limit on third-party contributions is not valid. In these cases, the uncollected amounts may be subject to inspections, with the payment of interest and fines.

We understand that this change may raise questions and concerns for many organizations. Therefore, we would like to offer our services to assist you in identifying the updated amounts exceeding 20 minimum wages that were not collected previously.

It is important to mention that the spontaneous collection of uncollected INSS values avoids the incidence of fines provided for in Article 44 of Law nº 9.430/1996, paid in the event of inspections and which can reach up to 150 percent of the uncollected amount.​