The Brazilian Internal Revenue Service (RFB) clarified, through the Cosit Consultation Solution No. 148, of December 21, 2020, the limit of the application of the tax benefit instituted by article 5 of Law no. 13,982/20, which allowed deducting from the transfer of contributions to Social Security wages paid in the first 15 days to employees on leave due to contamination with the new coronavirus (Covid-19), up to the contribution salary ceiling to the General Social Security Policy (RGPS), pursuant to article 60, paragraph 3, of Law No. 8,213/91. Launched in April of 2020, the benefit was one of the exceptional social protection measures adopted to confront covid-19.
In the case at issue, the consulting firm questioned the possibility of deducting the amount paid to a pregnant employee who submitted a medical certificate for leave from work for 14 days, a period which did not give rise to the granting of the sick benefit.
In answering the question, the RFB took the view that the deduction of wages paid during the first 15 days of absence from work was restricted to cases in which the sick benefit was subsequently granted by the INSS. To support this understanding, the body claims that this was the intention of the rule when making express reference to article 60, paragraph 3, of Law No. 8,213/91, which disciplines the granting of sick benefits due to work disabilities.
The RFB argued that, if this had not been the intention, the rule would have allowed deduction of the amount owed by the company during the employee's leave due to the contamination by covid-19 without any mention of the legal provision dealing with the granting of sick benefits.
Thus, the understanding that the payment of wages in the first 15 days of the employee's leave with covid-19 is the responsibility of the employer, who will only be authorized to deduct it from the transfer of contributions to Social Security "as long as the employee has been granted sick benefits.”
Given the binding effect of consultation solutions (article 9 of IN No. 1,396/13), this indicates that the RFB must charge companies that avail themselves of the tax benefit in cases in which an employee contaminated by covid-19 has been on leave from work for less than 15 days or has sick benefits denied by the INSS. The amount of the tax due will be required plus penalty and interest.
In our understanding, the interpretation manifested in the consultation solution does not align with the legislation in force, as article 5 of Law No. 13,982/20 did not condition the benefit of the deduction on the granting of sick benefits to the employee on leave due to covid-19. The mention of article 60, paragraph 3, of Law 8,213/91, which imposes the employer's obligation to pay wages in the first 15 days of the employee’leave, was intended to clarify the portion of the wages that could be deducted from the transfer of contributions to Social Security, and the RFB's claim to restrict legally established benefits is illegitimate.
We believe that this is the interpretation that fits the purpose for which Law No. 13,982/20 was issued, which established exceptional social protection measures to be adopted to confront covid-19, and there are good legal grounds against the interpretation adopted by the RFB. In view of this scenario, it is advisable for the companies to evaluate the treatment given to cases of leave linked to covid-19 in order to confirm the existence of exposure or evnet overpayments, which requires adjustment of procedures or the use of preventive measures.