The Law 12.513/11 which established the National Program for Access to Technical Education and Employment (Pronatec), changed some legal devices, including the Law 8.212/91 which regulates the organization of Social Security and established a Funding Plan.
The most significant change occurred in article 28 of Law 8.212/91, once it set a limit for aid education which is not considered as salary contribution. Prior to the new regulations, no amount for education aid was considered as contribution to Social Security.
This Law determines that there should be a contribution to Social Security if the monthly amount for the education aid is higher than one and a half times the minimum wage contribution or if the contribution exceeds 5 % of the employee`s remuneration. For an amount higher than this limit, the difference will be considered as salary contribution and consequently taxed. Between the two amounts, the higher one prevails.
According to this understanding, the employee who receives the education allowance will also be taxed if the amount exceeds the legally established amount, contributing, however, according to your salary.
Article 458 of the Consolidation of Labor Laws (CLT) determines that education aid is not considered salary. Soon the Law 12.513/11 will go against its own provisions, but until it will be decided which rule prevails, many discussions will still be necessary.
The Supreme Court of Justice has already given its opinion on this issue and understands that education aid has to be considered as investment in the qualification of the employee. In this situation it is not salary as usual and does not include the remuneration for the purposes of the Social Security, following the same understanding of the Labor Supreme Court.
Nevertheless, to avoid any eventual assessment with regards to this fact, the companies are opting to make the payment on the pension value spare, meaning on the amount which exceeds the limit established by the new law.
The direct confrontation between Laws and Regulations, especially art. 458 of the Labor Code (CLT) opens room for discussion in the sense that CLT prevails and/or the Law 8.212/91 and thus maintain the education aid exempted from social security contributions.
Valdirene Laginski was associate at Pacheco Neto Sanden Teisseire Law Firm.
Ermano José Leite Monteiro Junior was an associate at Pacheco Neto Sanden Teisseire Law Firm.
