WhatsApp

Tax · SPD Advocacia

Does your company pay INSS on pay in lieu of notice? The STJ has ruled the charge out

The STJ (Brazil's Superior Court of Justice) held that no social security contribution to the INSS (Brazil's social security institute) is due on pay in lieu of notice or on the amount paid during the first 15 days of sick leave. The PGFN (the National Treasury's attorney office) no longer contests part of these points. Companies that paid may recover the last five years.

STJ rulings (Temas)Professional confidentialityReplies on WhatsApp
Tell us about my caseSend documents

Pay in lieu of notice

STJ Tema 478

Under Tema 478 (a ruling issued under the repetitive appeals procedure), no social security contribution is due on amounts paid as pay in lieu of notice (REsp 1.230.957/RS). Nota PGFN/CRJ 485/2016 releases the National Treasury from contesting and appealing on this point, but the release does not cover the effect of pay in lieu of notice on the 13th-month salary.

The STF (Brazil's Supreme Federal Court) will decide whether the employer contribution applies to the proportional 13th-month salary tied to pay in lieu of notice (Tema 1.445, RE 1.566.336). The merits have not yet been judged.

Sick leave

The first 15 days

In the same REsp 1.230.957/RS, the STJ ruled out the contribution on the amount the company pays during the first 15 days of sick leave, because that amount is not salary in nature (Tema 738). PGFN Opinion SEI 16120/2020 releases the PGFN from appealing on third-party contributions and on SAT/RAT (the workplace accident risk contribution) levied on those days.

What cannot be recovered

One-third vacation bonus

The STF upheld the contribution on the one-third bonus paid on vacation actually taken (Tema 985), with effects modulated from September 15, 2020. For this reason, this item stays out of the claim, except in specific situations reviewed case by case.

Requirements

What we review

Payroll

Pay items over the last five years.

Terminations

Payments in lieu of notice.

Leaves

Medical certificates and sick leave.

Payments

Payment slips and filings for the period.

Source: STJ, Temas 478 and 738 (REsp 1.230.957/RS); Nota PGFN/CRJ 485/2016; Parecer SEI 16120/2020/PGFN; STF, Temas 985 and 1.445.

What is your case?

Situations the firm handles

High turnover

Company with many terminations

Recovery on pay in lieu of notice.

STJ, Tema 478
Sick leave

Frequent medical leaves of up to 15 days

Removal of the amount from the base.

STJ, Tema 738
Third parties and RAT

Related contributions

PGFN release regarding the 15 days.

Parecer SEI 16120/2020
13th-month salary

Effect of notice pay on the 13th

Monitoring of Tema 1.445.

STF, Tema 1.445
Construction company

Projects with temporary hires

Review of payroll items.

Case review
Gas stations and retail

Large teams and high turnover

Survey of the last five years.

Case review
This page provides general information, does not replace an analysis of the case and there is no guarantee of results.

Step by step

How the firm works

  1. Survey. Payroll and payments for the last five years.
  2. Calculation. Amounts by pay item, with your accountants.
  3. Action. Lawsuit or offset request, depending on the case.
  4. Routine. Payroll adjustments for the coming months.
+5 thousand cases handledTen years of law practicePractice before the STJ and the STFFeatured in G1, UOL, Estadão and TV Globo

Case review

Let us review your company payroll

Answer the questions, one at a time. At the end you can attach documents, which go straight to a folder in the firm's Drive, and send the summary via WhatsApp. Everything is protected by attorney-client confidentiality.

Common questions

Frequently asked questions

Can I recover what I have already paid?

As a rule, the last five years, through a lawsuit or an offset, depending on the case review.

Does Receita Federal (Brazil's federal tax authority) still charge the contribution on pay in lieu of notice?

The PGFN is released from contesting and appealing on this point, except for the effect on the 13th-month salary.

What about the one-third vacation bonus?

The STF upheld the contribution on the one-third bonus for vacation taken, with effects modulated from September 15, 2020.

Do you serve companies in other states?

Yes. We work throughout Brazil, with electronic case files and online meetings.

How does engagement work?

After the review, the firm sends a written fee proposal before any engagement.

Lawyer to recover employer social security contributions

SPD Advocacia serves companies throughout Brazil and abroad in reviewing payroll contributions, together with their accountants.

Pay in lieu of notice

Under STJ Tema 478, no social security contribution is due, and the PGFN is released from contesting.

First 15 days

Under STJ Tema 738, the amount is not salary in nature.

Informational content, in accordance with OAB (Brazilian Bar) Provision 205/2021. Each case depends on a review of the documents, and no result is promised.

Responsible lawyers

  • Sidnei Pedro Dias OAB/GO 48.603 · OAB/DF 68.207 · OAB/SP 501.693 · leads the firm’s cases
  • Adrielle Oliveira OAB/GO 76.298 · civil, family, business and international matters
  • Eduardo Prado OAB/GO 59.836 · criminal and electoral law

Online service throughout Brazil and for Brazilians abroad. Own office in Anápolis, Goiás, Brazil: Av. Juscelino Kubitschek, 500, Genesis Office, rooms 1506 and 1507. About the firm →