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STF Tema 72 · SPD Advocacia

INSS on maternity pay: the company may claim it back

The STF (Brazil's Supreme Federal Court) ruled that companies should not pay the employer social security contribution to the INSS (Brazil's social security institute) on maternity pay (salário-maternidade). Companies that paid it in the last 5 years may recover the amount.

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What did the STF decide?

In Tema 72 (RE 576.967), the STF held that the social security contribution borne by the employer on maternity pay is unconstitutional, because the benefit is paid by the social security system and does not pay for work.

Receita Federal (Brazil's federal tax authority) and PGFN (the National Treasury's attorney office) applied the decision in Joint Opinion SEI 52/2023/MF, including for the leave extension under the Empresa Cidadã program, and the amounts paid may be refunded or offset. The deduction of the employee's own contribution continues.

Requirements

Key points

Company with female employees

Employees who took maternity leave in the last 5 years.

Contribution paid

Employer contribution calculated on maternity pay.

Time limit

Last 5 years.

Documents

Payrolls and eSocial and DCTFWeb filings.

Source: STF, Tema 72 (RE 576.967); Joint Opinion SEI 52/2023/MF; CTN (National Tax Code), arts. 165 and 168.

What is your case?

Situations the firm handles

Healthcare

Clinics and hospitals

Teams with many women and frequent leaves.

STF, Tema 72
Retail

Stores and supermarkets

Large payroll and contribution on the leave.

STF, Tema 72
Education

Schools and colleges

Teachers and staff on leave.

STF, Tema 72
Condominiums

Own payroll

Condominium employees on leave.

STF, Tema 72
Services

Service companies

Outsourcing, cleaning and customer service.

STF, Tema 72
Point of attention

Simples company

Depends on the Simples annex and how the contribution is paid.

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. Review. We check the tax regime, invoices, payment slips and tax calculations for the last 5 years.
  2. Calculation. We show how much may be recovered and how much the company stops paying from now on.
  3. Filing. Administrative request, tax offset or lawsuit in the Federal Courts, depending on the case.
  4. Follow-up. Deadlines, decision, offset and receipt of the amounts.
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Case review

Let us review your case

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

Do I need to go to court?

As a rule, no. Receita Federal recognizes the right, and the amount may be offset or refunded through Receita Federal systems.

Does the employee lose anything?

No. The benefit stays the same. Only the contribution paid by the company changes.

How much can I recover?

The employer contribution paid on maternity pay in the last 5 years, adjusted by the Selic rate.

Is a Simples company entitled?

It depends on the Simples Nacional annex and on how the employer contribution is paid. We review the case.

Do you work with companies from other states?

Yes. Proceedings are electronic and service is online across the country.

How much does it cost?

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

Lawyer to recover INSS paid on maternity pay

SPD Advocacia serves companies across Brazil, and clients abroad, that paid the employer contribution on maternity pay and want to recover the amounts.

STF Tema 72

The social security contribution borne by the employer on maternity pay is unconstitutional.

Time limit to claim

The refund or tax offset covers the last 5 years.

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.

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