Mariz de Oliveira e Siqueira Campos Advogados

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The social contribution to the FGTS (Government Severance Indemnity Fund for Employees) - art. 1, Complementary Law 110 – no longer payable since the former objective was achieved.

It is common knowledge that Complementary Law No. 11, of June 29, 2001, introduced two social contributions aimed at obtaining the funds needed to subsidize the cost of the reimbursement of inflationary losses recognized by the Judiciary, funded by FGTS account holders. One of these, of one-half of one percent (0.5%), due monthly on payments to workers and owed for sixty (60) months, is no longer in force (art. 2). The second, of ten percent (10%), due in cases of unfair dismissals, on the amount of all deposits owed by the employer during such time as the respective work contract is in force, is still payable today (art. 1).

Further to the second contribution (art. 1), this was deemed constitutional by the Plenary Sitting of the STF (Federal Supreme Court), in the context of ADINs (Direct Hearing on Unconstitutional Matters) Nos. 2556/DF and 2568/DF. It subsequently became the basis of Draft Complementary Law No. 200/2012, which ordered its extinction, since it had achieved its objective, i.e., the regularly occurring settlement of the National Treasury’s liability to which Complementary Law No. 110 refers.

Upon being submitted for presidential sanction, this Draft Complementary Law was vetoed for, among other reasons, that the suspension of funds deriving from this contribution would impact the continuity of major social projects, among them the Minha Casa, Minha Vida (“My Home, My Life”) project.

Among other divergent reactions, this veto led to the hearing of a new ADIN by the STF. The aim, this time, was to contest the non-constitutional nature of this charge since its original objective had been achieved, a position whose validity found substantial support, as upheld by the STF at the time these ADINs were judged.

Although the preliminary order on this new ADIN was dismissed, we understand that there were many sound legal arguments contesting the payment of this contribution. These were based both in relation to the past (as from 2007) and to the future, and that each case should be heard individually, in order to ensure the achievement of the rights arising from that fact that this contribution was no longer due, even if, at some future date, the legitimacy of the ADIN would come to be recognized, given the possibility that the effects of this decision would be standardized to uphold only the rights of those who heard the case up to the date of the STF judgment of the ADIN.

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