.The Federal Supreme Court (STF) will decide whether the Union can institute progressive rates for the social security contribution of federal public servants, within the parameters of Constitutional Amendment (EC) 103/2019.
The controversy is the subject of RE 1384562, which had general repercussions unanimously recognized by the ministers of the STF. The judgment was listed in Theme 1226 of the general repercussion.
The progressive rate is provided for in article 11, paragraph one, items V to VIII, of EC 103/2019. The provisions provide for an increase from half a percentage point to eight percentage points in the social security contribution rate, depending on the value of the salary received by the civil servant.
In the extraordinary appeal, the Union contests the decision of the 5th Federal Appeals Panel of the Judiciary Section of Rio Grande do Sul, which ordered it to refund to a federal employee the amounts discounted as a result of the application of progressive rates. For the court of origin, the progressive taxation system violates the principle of tax equality, in addition to representing confiscation. The decision considered that the rate should be limited to 14%, which is the percentage provided for in the caput of article 11 of EC 103/2019.
In the STF, the Union argues that there is no constitutional impediment to progressivity and the increase in the rate, provided that the principles of legality, precedence, isonomy, ability to pay and non-confiscation are observed. With the decision for general repercussion, there is no date for the extraordinary appeal to have its merits judged.
Impact on other cases
On trial in the virtual plenary, the president of the STF, Minister Luiz Fux, expressed his recognition of the general repercussion of the appeal. For the magistrate, the discussion has a potential impact on other cases, due to the interest of thousands of federal public servants, retirees and pensioners, from the three Powers of the Union, who contribute to the Special Social Security Regime (RPPS) and, therefore, are subject to the provisions brought by EC 103/2019.
In addition, Fux stressed that the cause is relevant because the 5th Federal Appeals Panel of the Judiciary Section of Rio Grande do Sul declared the unconstitutionality of the contested provisions. According to the STF, the conclusion of the court of origin contradicts that of Minister Luís Roberto Barroso. In the judgment of ADIs 6254, 6255, 6258, 6271 and 6367, Barroso denied a request for a precautionary measure to, in the opposite sense, “deem constitutional, until deliberation by the Plenary, the system of progressive contribution rates for civil servants”.