Authors: Israel Cruz, Rafael Mello and João Pedro Riccioppo Cerqueira Gimenes
On Tuesday, January 23, the Brazilian Federal Revenue Service (RFB) issued an important note related to Summary No. 368 of the Superior Labor Court (TST), which determines that there is only a fine for late payment on the social security contribution resulting from the conviction labor if the company does not make the payment within the legal deadline or determined by the judge. On December 29, 2023, the aforementioned summary became binding on the Federal Revenue, due to the approval of SEI Opinion No. 4.825/2023/MF, issued by the Attorney General's Office of the National Treasury (PGFN). As a consequence of this adaptation, the Federal Revenue implemented, on January 9, 2024, a new version of the Declaration of Federal Tax Debts and Credits for Social Security and Other Entities and Funds (DCTFWeb) – specifically the DCTFWeb Reclamatória Trabalhista (“DCTFWeb RT”) . This update is significant as it excludes the incidence of late payment fines on debts arising from Labor Claims (RT). We remind you that from October 2023, in light of the publication of RFB Normative Instruction No. 2147/2023, companies must declare in “eSocial/DCTFWeb” the social security contributions intended for third parties (“S System”) owed as a result of condemnatory decisions or approvals issued by the Labor Court. The problem with the new rule was the fact that companies, when reporting the taxes mentioned in eSocial/DCTFWeb, the Federal Revenue system, when generating the “Darf” tab (Federal Revenue Collection Document), automatically inserted a late payment fine of up to 20% (twenty percent) applicable on taxes, as if they were being collected after the deadline. Therefore, the RFB understood that the employer had been in default since the month in which the service was provided by the employee whose employment relationship was recognized in court. However, both by social security and tax legislation and by TST Summary No. 368, the aforementioned contributions become due only after the final decision or agreement reached in the Labor Court, making the late payment fine undue/illegal. From now on, the Federal Revenue Collection Documents (Darfs) generated for Labor Claims debts on the DCTFWeb Portal will only include the principal amount and late payment interest, without the application of a late payment fine. In addition, it is planned to announce a specific revenue code for the collection of the late payment fine, as established in Summary 368 of the TST. This value must be calculated by the taxpayer himself. For the future, adaptations are planned in e-Social and “DCTFWeb RT” so that the calculation of the late payment fine is carried out after the deadline for payment, as determined by the Labor Court. Guidelines for “DCTFWeb RT” broadcast before January 9, 2024
It is crucial to highlight that, for DCTFWeb RT transmitted before the key date of January 9, 2024, taxpayers must adopt specific procedures to align with the new guidelines: Rectifier Transmission: To avoid the incidence of the late payment fine, those who transmitted DCTFWeb RT before January 9, 2024 must send a rectifying statement. This action is essential to adjust previous records to the new regulations. Procedures for Improper Payments: If the taxpayer paid the late payment penalty unduly, after rectification, he or she may request a refund or offset this amount. To do this, you must use the Refund Request or the Compensation Declaration, according to the forms Annex I or IV of RFB Normative Instruction No. 2.055, of December 6, 2021, which provides for refund, compensation, reimbursement and refund, in scope of the Federal Revenue of Brazil. Implications of Non-Rectification: As long as the DCTFWeb RT is not rectified, the Federal Revenue system will continue to demand a late payment fine. This can have consequences such as preventing the granting of refund/compensation requests and, in the absence of payment, resulting in restrictions on the taxpayer's tax status report. These changes reflect an important alignment between labor court decisions and systems designed by the government.
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