By Mariana Martins

Another emblematic judgment in favor of the Union was concluded in the STF. Last Friday, 08/28/2020, in a judgment held via Virtual Plenary, an understanding was established for the legitimacy of the incidence of the employer's social security contribution on the constitutional third of vacations, contradicting the understanding established within the scope of the STJ in 2016 in repetitive proceedings (REsp 1,459,779) and within the scope of the STF itself in 2018 (RE 593,068), when the constitutionality of the incidence on the amounts paid to public servants was assessed.

The decision is a cause for concern for the various companies that have stopped collecting taxes based on the STJ's understanding, supported by injunctions or other court decisions to that effect, and which may be amended based on this new judgment, resulting in the collection of amounts retroactively with all the usual increases.

In the understanding of the Rapporteur, Minister Marco Aurélio, accompanied by Ministers Luiz Fux, Carmen Lucia, Dias Toffoli, Rosa Weber and Alexandre de Moraes, the payment of one third of vacation is “inseparable from the work carried out during the year”, it being irrelevant that the employee does not provide services during the rest period, as the right to receive payment arises from a period of work completed.

Despite future discussions on the modulation of the effects of this new understanding, the fact is that this turnaround illustrates the scenario of legal uncertainty in which taxpayers find themselves immersed. How can one make adequate plans and protect oneself financially with so many discrepancies? How does the materiality of the payment of one-third of vacation paid to public servants differ from that paid to employees working in the private sector, other than the calculation of the amounts in the calculation of retirement, which does not apply to public servants?

In either regime, the employee or civil servant is entitled to receive one third of their vacation pay under the same circumstances. They will enjoy an increase in their remuneration to better enjoy the rest period. Although there are legally consistent arguments on both sides, this type of stance weakens financial and tax planning and, to a certain extent, discredits and corrodes the institutional image of the Supreme Court. Let's see what surprises will be in store in the coming weeks.