[Free translation]
In view of the provisions of article 22 of Law 8212/91, companies were subject to the payment of the Social Security Contribution on their payroll.
Subsequently, on December 1, 2011, as a result of the conversion of MP 540/2011 into Law 12,546 / 2011, the employer's social security contribution was replaced by a new contribution to certain activities, the so-called Social Security Contribution on Gross Revenue - CPRB .
In this context, the Brazilian Internal Revenue Service, through the Interpretative Declaratory Act No. 42/2011, determined that in December 2011, the employer's social security contribution, as provided for in Law No. 8,212 / 91, due on December 11 (eleven 12 th) of the thirteenth payment to employees (or 7/12 of the thirteenth payment in the year 2012).
However, RFB itself, through IN No. 971/2009, recognizes that the event that generates the social security contribution on the 13th salary occurs "in the month of payment or credit of the last installment of the thirteenth salary ..." .
Thus, all payments made as a social security contribution on the thirteenth salary, whose basis for calculation was the payroll, when already in force Law No. 12,546 / 2011, are amounts that can be refunded. This understanding also applies to companies that migrated to the new system of collecting social security contributions in 2012, when Law 12,715 came into force, which redrafted Law 12,546 / 2011.
The Judicial Branch (TRF4 and STJ) has already recognized the illegality of Interpretative Declaratory Act 42/2011 and the non-existence of a tax obligation to pay the employer's social security contribution on the thirteenth salary on a deferred basis.
In this context, we recommend companies to seek, through the filing of a judicial measure, the repetition of amounts unduly collected for such purpose.
The analysis and approval of the legal action is urgent because, for taxpayers who were forced to migrate to the new system in 2011 or 2012, the period to recover amounts unduly collected is prescribed five years from the undue payment.
