Priscilla Folgosi Castanha
Among the various controversies surrounding the universe of judicial recoveries, this article will address the jurisprudential and doctrinal controversy over the legal nature of the amounts related to the Severance Indemnity Fund and, consequently, whether or not they are subject to the effects of recoveries.
At first, the prevailing view was that the FGTS was an eminently taxable credit, a view largely supported by Sumula 353 of the Superior Court of Justice, according to which “The provisions of the National Tax Code do not apply to contributions to the FGTS”. (DJEletrônico 19/06/2008).
However, some jurists argued that this Precedent was inappropriate, since it was based on precedents judged under the 1967 Federal Constitution, i.e. under the old national tax system. It is correct to say that the Supreme Court, after the promulgation of the 1988 Constitution, re-examined the matter, attributing a parafiscal nature to social contributions, including the FGTS. This understanding had in fact been applied by the Federal Supreme Court in several judgments, thus recognizing the tax nature of the amounts linked to the FGTS.
However, there was a new turnaround in 2015, when Justice Gilmar Mendes, Reporting Justice of ARE No. 709.212/DF, in his vote stated:
There is no doubt that the amounts owed to the FGTS are “credits resulting from employment relationships”, insofar as, as previously pointed out, the FGTS is a right of a social and labor nature, which derives directly from the employment relationship (a concept, it should be repeated, that is broader than that of the mere employment relationship). (STF – ARE 709212/DF; Rapporteur: Min. Gilmar Mendes; Judgment: 13/11/2014; Judging Body: Full Court; General Repercussion; Publication: 19-02-2015).
As a consequence of this understanding, the Supreme Court reduced the statute of limitations for its collection, formerly 30 (thirty) years, indicating that the five-year statute of limitations provided for in item XXIX of art. 7 of the Major Law applies, observing the two-year period after the termination of the employment contract.
The Superior Labor Court itself, which historically defended the hybrid nature of the FGTS – for the State it would fall under the concept of a tax and for the worker it would constitute deferred salary – bowed to the STF’s understanding, adjusting its old position by amending Precedent No. 362, recognizing it as a labor right.
The Supreme Court’s view has thus prevailed, according to which the FGTS is a social right of Brazilian workers, provided for in the Federal Constitution itself, in article 7, item III, which states that: “The following are rights of urban and rural workers, in addition to others aimed at improving their social condition: III service time guarantee fund”.
Along these lines is the most recent ruling by Judge Azuma Nishi, of the 1st Chamber Reserved for Business Law of the São Paulo Court of Justice, in a unanimous judgment on 23.05.2018 in the case of Interlocutory Appeal No. 2034905-70.2018.8.26.0000, the gist of which is transcribed below:
INTERLOCUTORY APPEAL. JUDICIAL REORGANIZATION. AUTHORIZATION OF CREDIT. Controversy over the possibility of including amounts related to FGTS, INSS and IRRF as a labor claim in favor of the creditor. Decision under appeal determined the inclusion of all these amounts.
FGTS. Amount held by the worker that is labor in nature. Possible inclusion of the claim in class I (privileged claims) of the general list of creditors.
SOCIAL SECURITY CONTRIBUTIONS. INSS and IRRF. Qualification of social security contributions is unacceptable. The worker is not the holder of these amounts. The amounts relating to INSS and IRRF must be excluded.
DECISION PARTIALLY REVERSED. APPEAL UPHELD IN PART.
However, even today the discussion has not been settled either in doctrine or in case law. Justice Manoel de Queiróz Pereira Calças continues to argue that the fact that the worker can demand the deposits through a labor claim, in which it is even allowed to settle, such credits are not subject to the effects of judicial recovery, given their indisputable tax profile, even though they cannot be confused with a tax.
It is possible to conclude that given the multidisciplinary nature of the contribution itself and the different consequences of whether or not it is subject to the effects of judicial reorganization, as well as bankruptcy itself, the issue will continue to give rise to divergent understandings, which, although thought-provoking, do nothing to contribute to much-needed legal certainty.
With regard to INSS and IRRF amounts, given their essentially tax nature, it is not possible to give them the privileges of labor claims. Thus, it is incontrovertible that their subjection to the effects of judicial reorganization is unreasonable, since these are credits whose holder is the Federal Union, which may use the proper executive means provided for in the legislation.
¹Extraordinary Appeal nº138.284-8 CE, Rel. Min. Carlos Vellos, j.em 01/07/1992 in a unanimous vote
²TST Precedent No. 362 – FGTS. PRESCRIPTION (new wording) – Res. 198/2015, republished due to a clerical error – DEJT published on 06.12, 06.15 and 06.16.2015
I – For cases in which the injury occurred on or after November 13, 2014, the statute of limitations for the right to complain about non-payment of contributions to the FGTS is five years, observing the period of two years after the end of the contract;
II – For cases in which the statute of limitations was already running on November 13, 2014, the statute of limitations that expires first applies: thirty years from the initial term, or five years from November 13, 2014 (STF-ARE-709212/DF)
³CALÇAS, M. Q. P. The controversy over the legal nature of contributions owed to the Severance Indemnity Fund by a company undergoing judicial reorganization. In: CEREZETTI, S. C. N.; MAFFIOLETTI, E. U. Dez anos da Lei 11.101/2005: estudos sobre a lei de recuperação e falência. São Paulo: Ed. Almedina Brasil, 2016.
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