The Brazilian Federal Revenue Service (RFB) has once again expressed the understanding that the portions of the transportation voucher and food assistance paid for by the company and by the employee are treated differently for the purposes of social security contributions. On June 30, 2020, the RFB published the Cosit Consultation Resolution No. 58/20, following some of the assumptions already adopted in Cosit Consultation Solution No. 04/19.
According to the RFB, the company hiring services through the assignment of labor may deduct from the calculation basis of the employer's social security contribution (gross amount of the invoice, receipt, or service receipt) the amounts defrayed by the borrower as transportation vouchers and food assistance, the latter in natura if before the Labor Reform, and also by means of ticket or card, if later.
The RFB highlights that the legislation authorizes the deduction from the tax basis of the withholding tax only of the portion of the transportation voucher and food assistance borne by the company. The same reasoning does not apply to the portion of co-pay deducted from employees' remuneration, which must be included in the calculation basis, since one could not contemplate "the possibility that the company would be able to deduct from the calculation basis the tax due a sum that does not belong to it."
A similar issue had already been addressed in Cosit Consultation Resolution 04/19, whereby the RFB clarified that, when the food assistance is paid by both the company and the employee, the treatment of these amount for the purposes of levying social security contributions should be different.
In that scenario, the understanding adopted was that the portion of the food assistance deducted from the employees in a co-pay system will be included in the calculation basis of the social security contributions as part of their remuneration, since the amount discounted constitutes employee salary. The share paid by the employer, in turn, would not be in the basis for calculating the contributions in question.
Although the consultation dealt only with food assistance, the discussion is similar for transportation vouchers, medical and dental assistance plans, and supplementary pension funded via co-pay with employees. There is a controversy as to whether such funds are taxed to employees and not employers, if the RFB's understanding is followed. What is discussed is whether or not these funds make up the contribution salary.
The two consultation solutions indicated are binding on the RFB and support the actions of other taxpayers, as per article 9 of Normative Instruction No. 1,396/13. Failure to comply with these guidelines may result in assessments of taxpayers and rejection of any refunds, which are rarely overturned in the administrative sphere.
However, there are favorable court decisions recognizing the possibility of excluding employees' co-pay installments from the calculation basis for social security contributions, since article Article 28, paragraph 9, of Law 8,212/91 established that the amounts received as transportation vouchers, food assistance, medical and dental assistance plans, and supplementary pension plans are not included in the contribution salary.
There are robust legal bases for it also be recognized that, in the period before the Labor Reform, the benefit of food assistance provided through vouchers or a prepaid card in the context of the PAT is not subject to taxation through social security contributions, in accordance with applicable regulations.
In view of this scenario, it is advisable for companies to carefully evaluate the treatment to be given given to the amounts paid in each case in order to ascertain the existence of excess withholding or even exposure, which may require adjustment of procedures or even the use of preventive measures.