[Free translation]
Law No. 12.715 / 12 provided for some economic activities to replace the employer's social security contribution with a new contribution called CPRB - Social Security Contribution on Gross Revenue, whose rules became effective as of August 1, 2012.
Law No. 12,715 / 12 determined that these taxpayers, despite being subject to the new system (CPRB), should also pay the social security contribution on the 13th salary relative to the year 2012, using as a basis calculation the percentage of 7/12 avos.
The Judiciary has understood that such a requirement is invalid. This is because, it should be taken into account that the event generating the social security contribution on the 13th salary only occurs with the payment / credit of the value - which, as a rule, occurs in December of each year. Thus, since the law that regulates a new form of tax incidence is in force, it does not appear valid to require the social security contribution in a proportional way with respect to the past period.
For these reasons, the payments made by these taxpayers as a social security contribution on the 13th salary of the year 2012, whose basis of calculation was the payroll, when already submitted to the CPRB, are amounts that can be refunded.
In this context, we recommend to companies to seek the repetition of amounts unduly collected in such a way, through the filing of a competent judicial measure.
For taxpayers who were forced to migrate to the new system in 2012, the analysis and approval of the legal action is urgent, as the term to recover amounts unduly collected is prescribed five years after the undue payment.
