13.1. Concepts and Constitutional Principles of the Social Security System
According to the Federal Constitution and to Law no. 8,212/1991, comprises an integrated set of actions related to initiatives from the Public Powers and from the Society that are aimed at protecting the rights to health, social security and social assistance.
- Health: a right of every citizen which aims to offer a social and economic policy designed to mitigate risks of illnesses and other complications, affording actions and services to protect and recover the individual.
• Social Assistance: aims to establish a social policy to the disadvantaged party through private and state funded activities envisaging the extension of minor benefits and services, regardless of contribution by the interested party.
• Social Security: aims to assure to its beneficiaries the indispensable means for survival in the event of occurring a contingency established in the law, such as a loss of work capacity, illness, disability, advanced age, death and involuntary unemployment, or even maternity or reclusion.
13.2. Social Security System Funding
The system is funded by the following revenues:
- revenues of the Federal, States and Municipal treasuries;
• revenues from social contributions;
• revenues from other sources.
There are the following types of social contributions:
- Social Security contributions due by the companies: levied upon the remuneration paid to the workers in view of the service rendered;
• Social Security contributions due by the domestic employers: levied upon the remuneration paid to the workers in view of the service rendered;
• Social Security contributions due by employees: levied upon the remuneration paid to the workers in view of the service rendered;
• Social contribution (PIS, COFINS and CSLL) or substitutive social security contributions due by the companies: levied upon revenues and profits;
• Other social contributions: levied on revenues of lotteries.
13.3. Social Security structure – different regimes
Considering that Health and Social Assistance are rights granted to all individuals independent from contributions, please find below the rules exclusively applicable to the Social Security System.
There are the following Social Security regimes:
- General Social Security Regime (RGPS). The general regime is regulated by the Brazilian Federal Constitution and Law 8213/91 and further amendments, implemented by the governmental agency designated National Institute of Social Security (“INSS”), of the Ministry of Social Security. The current Brazilian social security system is based on the so-called plain division system, which is characterized by the transfer of income among individuals of the same generation, whereby the workers in activity finance the inactive workers. The legal grounds of the system is the principle of solidarity (Federal Constitution, article 3, I). In summary, it is a public, mandatory, pay-as-you-go (PAYG) scheme, managed by INSS. Recent reforms were oriented to strengthen the redistributive role of the basic scheme, increase coverage and correct actuarial distortions;
• Optional Complementary Social Security Regime (Private Pension): This regime is organized independently of the General Regime of Social Security and is always optional;
• Social Security Regimes of the Government employees and soldiers: Civil servants are under specific pension provisions. Although the eligibility criterion is the same for all government workers, there are over 2400 specific pension regimes managed by the Federal government, States and Municipalities with specific financing rules. The regimes are mostly PAYG with some pre-funding in a few states and municipalities. The national armed forces and similar groups at state level have a career-basis scheme mostly financed by general budget. Recently, the government has promoted comprehensive adjustments in the PAYG parameters (age limit, replacement rates, retiree’s contribution) for current workers and the convergence of rules for private and public sectors that will come into force for the future generation of civil servants. For these reasons, they will not be detailed in this publication.
13.4. Beneficiaries of the General Social Security Regime (RGPS)
- a) Compulsory Insured
- Employees hired in Brazil, under the terms of the Labor Code (“CLT”), even temporaries, to render services in Brazil or abroad, on routine basis, with subordination and receiving remuneration;
• Domestic servants: provided that the activity does not represent profits to the employer;
• Self employed workers: one who renders services without employment relationship, such as:
– The worker that renders urban or rural services on a occasional basis (i.e. non-continuously and occasionally, without subordination and work hours schedule) to one or more companies without a binding employment relationship;
– The individual that is engaged, on a self-employed basis, in an urban work activity, with a profit or non-profit purpose;
– The holder of a single individual firm of urban or rural nature;
– The non-employed director and member of a board of officers of a corporation;
– The partners of the general partnership and capital and industry-type companies;
– The manager-partner and the quota holder-partner that receive a fee for their services rendered to the private limited company engaged in urban or farm activities;
– The worker affiliated to a collective organization who, through the latter, renders services to third parties;
– The worker paid on a per day basis that renders services on a non-continuous basis at the residence of a person or family, without a profit purpose;
– The minister of a religious confession and the member of a sacred institute and of a congregation or religious nature, when maintained by the entity to which they belong, except if it is a compulsory taxpayer to Social Security or another social security system;
– The civil construction individual worker and others;
• Independent workers: Workers that render specific services to several companies, without employment relationship, hired through Labor Unions or authorized public agencies, such as dock workers, salt and coffee bagging business, etc.;
• Specially Insured: This category covers farm hands that produce in the regime of family economy, without use of salaried labor. It includes spouses, companions and offspring over the age of 16 that work with the family in farm activities. The artisan fisher and Indians engaged in farm activities and their families are also included in this category;
The retired individual who continues working will be considered as mandatory insured and required to pay social security contributions.
- b) Optional insured
Individuals over the age of 16 that are not engaged in a paid work activity that falls under the category of compulsory insured of social security may affiliate themselves to the RGPS as optionally insured, such as housewives, students, expatriates living abroad, unless registered before the Social Security systems of countries that has singed international agreements with Brazil.
- c) Dependents
The General Regime of Social Security (RGPS) also covers the dependents that, by rule, are defined as those who economically depend on the insured worker. They are basically classified in three groups:
• Spouse, companion and children under 21, not emancipated or disabled;
• Brothers/sisters under 21, not emancipated or disabled.
Stepchildren or adopted under the age of 21 that are in the custody of the insured worker have the same rights of children, provided that they do not have property for their support and education.
The economical dependence of spouses, companions and children is presumed. In the other cases it must be proven by documents, e.g., income tax return.
13.5. Concepts of company and domestic employer
- Company – legal entity that assumes the risk of the economic activity with or without profits, as well as the units of the public administration. The self employed worker is equated to the companies for social security purposes with regards to the insured who render services in his/her favor, as well as the diplomatic entities.
- Domestic employer – the individual or Family whose hire services with no profits intentions
13.6. Social Security contributions of the companies
According to the information above, this topic will discuss only the contributions to fund the social security benefits. The Health and Social Assistance benefits are funded by the contributions described in details on the topic “11. Taxation” of this publication.
The companies that are part of the same economic group are jointly liable for the social security contributions debts.
- a) Contributions on the payment of remuneration to individuals
- Calculation basis: the total amount of remuneration paid or credited, at any title, during the month, to the individuals rendering services, with the scope of remunerate the work performed, including tips, routine payments, utilities, advance payments and other advantages;
• Contribution of the companies: 20% (without limits);
• Additional contributions of the financial institutions: 2.5% (without limits) applicable to Financial institutions, commercial leasing companies, financial cooperatives, insurance and capitalization companies, independent insurance agent, private pension entities, etc.;
• Labor Accidents Insurance SAT/RAT: 1%, 2% or 3% according to the main activity in each branch of the company. The SAT/FAP rate is multiplied by the Accidents Prevention Factor – FAP which index varies from 0,5 to 2 depending on the investments in prevention and control of employment related accidents and according to the history of diseases and employment related accidents occurred;
• Additional rate of SAT/RAT: 6%, 9% or 12% according to the activity performed by the employee who is subject to hazardous conditions that allow special retirement after 25, 20 or 15 years of contributions;
• Contributions to Other Entities – Third Parties (FNDE, INCRA, SENAI, SESI, SENAC, SESC, SEBRAE, DPC, FUNDO AEROVIÁRIO, SENAR, SEST, SENAT, SESCOOP): from 0.2% to 5.8% according to the main activity in each branch of the company.
In summary, the contributions of the company may vary from 20% to 35%, approximately.
The payments performed to Cooperatives are no longer subject to social security contributions.
The payments that represent exceptions and are not considered remuneration are the following:
- social security benefits, except for the maternity leave;
• cost allowances Received by the aeronaut;
• feeding allowance granted under the rules established by the Ministry Of Labor and Employment;
• indemnified vacation and 1/3 additional;
• severance fund;
• indemnifications established on the Labor Code;
• incentives for Volunteer Dismissal Program;
• non-routine payments and allowances disconnected from the salary;
• transportation voucher received in accordance with the law;
• one time allowance to bear the cost of the change of the city of work;
• trip allowances limited to 50% of the salary;
• salary of the intern / trainee;
• profit sharing payments in compliance with the law;
• the PIS allowance paid by the government;
• transport, feeding and living to render services out of the city;
• complementation of the sick leave benefit, provided that it is offered to all employees;
• private pension contributions, provided that it is offered to all employees;
• health insurance and medical reimbursements, provided that it is offered to all employees;
• uniforms and work tools granted to the work force;
• reimbursements for the use of the personal car;
• child care reimbursement, in accordance with the labor legislation;
• education allowances limited to 5% of the salaries and related to the activates of the employee or basic formation;
• culture allowance in accordance with the law;
In addition to these payments expressly exempt from social security contributions by the legislation, here are several judicial discussions regarding other payments that would have indemnified nature rather than salary nature that are still pending decision by the Supreme Court.
- b) Contributions on gross revenues
The following social security contributions should be paid in substitution to the contribution due on remuneration:
- Professional soccer team: 5% of the gross revenue from events, sponsorships, advertisement and broadcast of the events;
• Rural producer – individual: 2.3% on gross revenue of sales (there is a decision of the Supreme Court against the constitutionality of this contribution);
• Rural producer – legal entity: 2,85% on gross revenue of the sales;
• Agroindustry: 2,85% on gross revenue of sales. Please note that this substitutive regime (contributions over gross revenue rather than payroll) is not applicable to some types of companies such as those that their rural activities are solely afforestation and reforestation as a source of raw material for its own industrialization which modifies the chemical nature of wood or transforms it into pulp, for example.
• SIMPLES Nacional: Special regime for small and medium companies. Possibility of collection, upon a unique collection system, of taxes and contributions within the federal, state and municipal scopes.;
• Brasil Maior Plan: Since 2011, Law No. 12,546/2011 (“Brasil Maior Plan”) established a new system of collection of the social security contributions (specially regarding the social security contribution set forth by article 22, I and III of Law No. 8.212/91), for specific industry sectors. For these specific sectors, the social security contributions is calculated upon the gross revenues of services and/or products, instead of upon the remuneration paid to its employees and self-employed workers. However, on August 31, 2015, the Law No. 13,161/2015 was enacted to INCREASE the tax rates applicable for the social security contributions levied upon gross revenues of services and/or products listed on Article 7 and 8 of Law No. 12,546/2011. As a general rule, the tax rates of 2% and 1% set forth in Law No. 12,546/2011 were increased to 4.5% and to 2.5%, respectively. There are also other services and products with different tax rates set forth on article 8A of Law No. 13,161/2015. It is important to mention that this new method of calculation became optional and, for this reason, the company must (definitely) choose its option by the first month of every year. With respect to year 2017, the option for this substitutive system shall be done by the payment of the social security contributions levied upon the gross revenue due in January of 2017 (to be paid in February, 2017) and it will be irrevocably for the rest of the year of 2017.
- c) Assignment of man power
The companies hiring services rendered upon assignment of man power / labor force, including temporary work, are subject to withhold eleven percent (11%) from the gross amount of the formal invoice or receipt and collect to the social security the amount withheld on behalf of the company hired.
The amount withheld from the company that render the services may be offset in the social security monthly declaration (GFIP).
13.7. Contributions of the insured
The contributions of the insured are calculated upon the total remuneration received monthly according to the limits of the following table, which is periodically updated:
|Table applicable to employees, domestic servants and individual worker|
|Remuneration (R$) – June 2016||Rate (%)|
|Up to 1,751.81||8|
|From 1,751.82 to 2,919.72||9|
|From 2,919.73 to 5,839.45||11|
The contribution of the self employed worker who renders services to legal entities is of 11%, limited to the maximum amount above (representing R$ 642.34).
The self employed worker that renders services within the same month to more than one company is required to inform to each company the amount or amounts received against which the contribution deduction is due, upon presentation of the payment receipt for the purpose of observing the maximum salary base.
The hiring company is required to make the withholding and collection of the social security contributions due by employees, independent workers and self employed workers.
The contribution of the self employed worker (other situations) and the optional insured is of 20% upon the amount up to the maximum indicated above.
The special insured contributions correspond to 2.3% on his/her gross revenue of sales.
13.8. Ancillary obligations and Clearance Debts Certificate
The contributions above mentioned should be monthly declared in the GFIP form in accordance to the rules established by the GFIP guidelines manual. In the future, GFIP will be substituted by the E-SOCIAL.
The E-SOCIAL is the digital payroll and other labor, social security and tax obligations related to any service agreement in Brazil (e.g.: employees, self-employed workers, partners/shareholders, cooperatives, companies that provide services with outsourcing of manpower and, thus, subject to the 11 % withholding). With the E-SOCIAL, the Federal Government seeks to consolidate all information in a single database and, therefore, to eliminate the ancillary obligations related to “employees’ registration forms”, “Payroll”, “GFIP” (which is a social security tax form that will be incorporated into DCTF Web), “RAIS”, “CAGED”, “DIRF”, “CAT “, “MANAD”, etc. As you can notice , the E-SOCIAL requires an internal review of the company’s policy since it will be necessary to put information from different areas/departments of the company such as, for example, the human resources department, accounting department, medicine and safety department, legal department, tax department, IT department ( e.g.: information about admissions and layoffs of employees, salary increases, labor/work accidents, labor claims, etc.). Please note that our Office is participating in several events related to the E-SOCIAL’s discussion, since there will be a huge impact on the companies’ business routine and also since it may increase the visibility/exposure of the tax, social security and labor measures adopted by the companies.
The implementation of the E-SOCIAL has been postponed since 2014. On August 31, 2016, the Normative Nº. 02, of the E-SOCIAL Boarding Committee, was published on the Official Gazette, to regulate the Social Tax Digital Bookkeeping of taxes, social security and labor obligations (E-SOCIAL), more specifically with respect to the deadline extension related to the enforceability of the E-SOCIAL Program. According to Article 2 of such regulation, t the implementation and transmission of the information through E-SOCIAL will be mandatory as from:
1. January 1, 2018, for employers and taxpayers (companies) with gross revenues in 2016 over R$ 78,000,000.00 (seventy eight million Reais); and
2. July 1, 2018, for other employers and taxpayers (companies).
The companies are also required to:
- Prepare detailed payroll;
• Register on monthly basis the social security basis on the accounting books;
• Deliver all information required by the Federal Revenue Department;
• Inform the employees the amount of the remuneration and social security contributions on monthly basis
In case of issuance of a federal tax assessment, the authority may claim the payment of the tax / contribution plus SELIC interest (from 0,5 to 1% per month) plus 75% penalty (in exceptional cases, such as fraud or simulation, the penalty can be increased to 150%). According to the Federal Revenue regulations, the tax audit is random and may occur without a cause or reasoning.
For social security and other federal taxes, the statute of limitation is usually 5-years counted from the date of the triggering event. Please note that, depending on the tax under discussion, the triggering event may occur in different periods (monthly, early, etc.).
The existence of social security debts or the lack of compliance with ancillary obligations prevents the issuance of the clearance debts certificate related to federal taxes and contributions, which is necessary to the participation in public biddings, to receive payments from the government, to get bank loans, etc.
Since January 1, 2004, Social Security requires the companies that expose their employees to toxic chemicals, physical and biological elements the so-called Professional Profile for Social Security Purposes (PPP) based on an environmental conditions survey. It consists of an individual chronological-labor document of the worker, presented in a form established by INSS, which informs the worker’s exposure to toxic agents and gathers administrative, environmental and biological information during the entire period in which the worker worked for the company. The PPP guides the process of recognition of special retirement developed by the Technical Record of Environmental Working Conditions (LTCAT) and provides biological monitoring results obtained based on the Occupational Health and Medical Control Program (PCMSO) and in the Environmental Risk Prevention Programs (PPRA).
13.9. Social Security benefits
The Social Security system offers 14 (fourteen) benefits, excluding health and social assistance benefits, as follows:
- a) In favor of the insured:
- Age retirement: This type of retirement is granted to men at the age of 65 and to women upon attaining the age of 60. Farm hands (men) retire at the age of 60 and women at the age of 55. In case of disabled person, the periods are reduced;
• Retirement for period of contribution: To be entitled to a full retirement pension the male worker must prove at least 35 years of contribution payments, 30 years in the case of the female worker. In case of disabled person or basic teacher, the periods are reduced;
• Disability Retirement: This benefit is granted to workers that, due to an illness or accident, are considered by the INSS’s medical examination team as disabled for performing their duties or other type of work that enables them to support themselves;
• Retirement for Special period of contribution: For activities performed by the employee who is subject to hazardous conditions, the period of contribution is of 25, 20 or 15 years according to the specific rules;
• Sick leave allowance: This benefit is paid to workers on sick leave for more than 15 days. During these first 15 days, the salary is regularly paid by the employer and after that the benefit is paid by the INSS;
• Accident allowance: This benefits is a indemnification paid by INSS to compensate the reduction of the capacity of the individual to render services;
• Family allowance: This benefit is paid to workers with low salaries (minimum wage) to assist in the support of their children aged 14 at most or handicapped. The stepchildren and children under the worker’s custody that do not have sufficient means for their self-support are equalized to the worker’s own children;
• Maternity leave: The company shall afford to the remuneration of the maternity leave payable to the pregnant employee as well as compensate the amount along with the amount payable for purposes of compensation of the contribution levied upon the payroll. The insured female employee (i) having fixed wage will receive the total amount of the monthly remuneration; (ii) having variable wage will receive the equivalent to the salary average of the six previous months. The amount of the maternity leave cannot be higher than the salary of the Minister of the Supreme Court;
• Fishermen unemployment allowance: This benefit is paid to fishermen during the periods of the year in which they are not allowed to fish.
- b) In favor of the dependents:
- Reclusion allowance: This benefit is paid to the dependents of the insured individuals who is arrested;
• Pension for death: This benefit is paid to the dependents of the insured individuals who has died.
13.10. International Social Security Treaties
The Brazilian Social Security has executed several treaties with other States in order to make feasible for the insured workers and their dependents, whether residing or temporarily established in other nations, to take advantage of numberless social security benefits.
The international treaties concerning social security issues executed by Brazil aim at assuring the Social Security rights as set forth in the laws of both agreeing countries, specified in the corresponding agreement, to the workers and legal dependents, whether residing or temporarily established in other agreeing countries.
Currently, the following treaties are in force: Germany, Belgium, Green Cape, Canada, Chile, Spain, United States, France, Greece, Italy, Japan, Luxemburg, Portugal, IBEROAMERICAN (Bolivia, El Salvador, Ecuador,) MERCOSUR (Argentina, Paraguay and Uruguay), South Korea and Quebec.
Recently, Brazils has signed new treaties which are still pending confirmation by the congress of both countries, such as Bulgaria, Israel, Mozambique and Switzerland.
In case of temporary transfer, the treaties may represent that the expatriate remains registered only before the social security system of the original country, being exempt from the payment of contributions in the expatriation country.
In case of definitive transfer, the expatriate will be registered before the social security system of the expatriation country, however the period of contribution will be considered for the purpose of benefits (the rules of the periods to be considered for benefits applicable are variable in each treaty) in the original country.
13.11. Complementary Private Pension
The government branches responsible for regulating and overviewing the Brazilian private pension market are the National Monetary Council (Conselho Monetário Nacional – “CMN”), the Private Pension National Council (Conselho de Gestão de Previdência Complementar – “CGPC”)1 and the Private Pension Agency (Superintendência Nacional de Previdência Complementar – “PREVIC”).
This scheme includes funded occupational and personal pension plans privately managed by closed and open pension funds and insurance companies. The affiliation is not mandatory and the reform efforts have been focused on the modernization of the rules and the extension of the regime’s coverage.
The Closed Private Pension Entities (Entidades Fechadas de Previdência Complementar – EFPC) are private, non-profit organizations, established by single employers, multiple employers and recently by labor unions or professional associations. The regime is financed by employers and/or employees contributions on occupational or associative basis. The pension funds’ assets are legally segregated from the sponsors’ and submitted to specific accounting, financing and actuarial regulations.
The Open Private Pension Entities (Entidades Abertas de Previdência Complementar – EAPC) – that manage the plans – may be operated by insurance companies, bank’s subsidiaries and non-profitable organizations and offer pension plans to employees, employers, self employed and non-employed. The plan can be contracted out by enterprises as fringe benefit to their employees or, more commonly, contracted directly by individuals.
Closed pension funds offer defined benefit plans, defined contribution plans or mixed arrangements, except funds sponsored by labor unions, professional associations and the pension funds for civil servants, all of which that can only manage defined contribution plans. According to Brazilian regulations, the mixed arrangements are defined contribution plans with some ingredients of defined benefit provision like the cash balance plans, floor benefit plans and target benefit plans. In occupational schemes, the accumulated funds in individual accounts are portable under certain restrictions, as a vesting period of 3 years at most, and withdrawals are conditioned to the act of retirement or the termination of employment.
Generally, the contributions to all private pension plans represent labor and tax benefits:
- a) Labor aspects: Brazilian Labor Code expressly excludes the contributions to the private pension plans from the concept of salary.
- b) Tax aspects: the contributions to all private pension plans are tax-deductible up to 12% of the employee’s salary for workers and 20% of the wage bill for employers. According to the legislation, since 2005, the investment returns of the private pension entities are no longer taxed. This change intends to encourage the development of Pension Funds on a long-term basis.
1 Currently named Conselho Nacional de Previdência Complementar.
Authors: Mariana Neves de Vito e Paulo Roberto Gomes de Carvalho
Av. Arq. Olavo Redig de Campos, 105 X Av. Enxovia, S/N
29°, 30° e 31° andares
Edifício EZ Towers, Torre A – 04711-904
São Paulo – SP
Tel.: (11) 3048-6800
Escritórios em: São Paulo, Rio de Janeiro, Porto Alegre, Brasília
Idiomas: português, inglês, alemão, francês, espanhol, italiano, japonês
Atividades: atuação em todas áreas de direito empresarial; grupos de prática especiais para clientes de língua alemã, francesa, espanhola, japonesa e chinesa.