Tax | 5 Key Considerations on Social Security Contributions for Brazilian Companies with Benefit Co-participation

The Brazilian Federal Supreme Court (STF) is preparing to rule on Theme 1,415 (ARE 1,370,843), which discusses whether employees’ co‑payment amounts for benefits such as transportation vouchers and meal allowances should be included in the calculation basis of the employer’s social security contribution. Although the matter is technical and tax‑related in nature, it has a direct impact on payroll and companies’ cash flow.
 
Currently, the Superior Court of Justice (STJ) understands that these amounts must be included in the calculation basis, pursuant to Repetitive Theme No. 1,174 (REsp 2,005,087). However, STF’s analysis, from a constitutional standpoint, may open room for a shift in this understanding and significantly change payroll costs for companies.
 
Considering this possible tax turning point, it is essential that business owners and financial managers understand the 5 main points of attention on the subject:
 
1. Nature of the Controversy and Direct Effects on Payroll: Although it concerns a tax matter, the ruling directly affects labor costs. The central debate is whether the employee’s co‑payment has a remunerative nature (integrating the contribution salary) or an indemnity nature (mere reimbursement). A decision in favor of its indemnity nature would remove taxation, leading to a direct reduction in payroll charges and a positive impact on benefits management and human resources.
 
2. Case Law Divergence and Constitutional Review: While the STJ has settled the matter at an infraconstitutional level, the STF will reassess the issue in light of constitutional principles. This analysis may lead to the establishment of a new, overturning the prevailing thesis and setting a binding precedent for the entire country.
 
3. Possible Modulation of Effects and Its Consequences: If the STF changes the current understanding, it is highly likely that it will also determine the modulation of the effects of its decision. This would make the new rule applicable only for the future (ex nunc), preserving the right to a refund of the amounts paid in the last five years only for companies that have already filed lawsuits before the final decision.
 
4. The Importance of Legal‑Tax Planning: Given the jurisprudential uncertainty, companies should quantify the amount of contributions levied on co‑payments, assess risks, and consider the feasibility of preventive legal measures. A strategic move now may result in significant savings and greater legal certainty in the medium term.
 
5. The Context of Other Indemnity Payments Already Recognized: The discussion of Theme 1,415 does not take place in a vacuum. The higher courts have already consolidated the understanding that indemnity‑based payments do not form part of the calculation basis of the social security contribution. Notable examples include maternity pay, on which the STF declared the contribution unconstitutional (Theme 72), and indemnified notice, on which the STJ removed taxation (Repetitive Theme 1,238). This history of decisions reinforces the thesis that benefits without the nature of consideration for work must be excluded from taxation, which may influence the STF’s ruling.
 
The STF’s judgment on the levy of social security contributions on employees’ co‑payments may mark a turning point in the tax and labor environment for companies. Regardless of the outcome, this is an issue that calls for planning, prudence, and strategic action. Monitoring the case, preparing scenarios, and acting preventively are measures that strengthen financial governance and consolidate legal certainty in business relations.