Earlier this month, the 1st Panel of the Superior Court of Justice (STJ) ruled that amounts paid as profit-sharing (PLR) to statutory directors (non-employees) should be subject to social security contributions. In the same ruling, however, the Court ruled out the levy of contributions on these directors’ supplementary private pension plans.
For the STJ, the legislation (LC 109/2021) that governs private pension plans contains a specific provision eliminating the incidence of contributions in these situations, which, in turn, tacitly revoked the provision of the previous legislation (Law 8,212/91), which instituted the social security funding plan.
Regarding profit sharing, the Court understands that statutory Directors must be classified as individual contributors, therefore applying the incidence of social security contributions as provided for in the regulations (art. 28, III, Law 8,212/91).
Specifically with regard to the PLR, it seems to us that the STJ did not make the best interpretation of the legislation, since the joint analysis of the legislation, especially Laws No. 10,101/2000 and some provisions of Law 6,404/76, allows us to conclude that the social security contribution should not be levied on the amounts allocated to the statutory Directors as profit distribution.
