The constitutionality of the severance social contribution created by Complementary Law 110/2001

Abstract

The article examines the constitutionality of maintaining the severance social contribution created by Article 1 of Complementary Law 110/2001, owed by the employer at a rate of ten per cent on the total of the FGTS deposits in cases of dismissal without just cause. It starts from the distinction between the three kinds of social contribution provided for in Articles 149, 194 and 195 of the Brazilian Constitution, classifies the levy as a general social contribution, and contrasts the statement of reasons of the statute with its objective wording, opposing the mens legislatoris to the mens legis. It discusses the ruling of the Supreme Federal Court in Direct Action of Unconstitutionality 2556, the presidential veto of Complementary Bill 200/2012, and the case law of the Federal Regional Courts of the 1st, 4th and 5th Regions. The text concludes that the levy does not offend the Constitution, because the statute set no final term and because the allocation of the proceeds to the FGTS meets the constitutional purpose of general social contributions, and it recommends following the outcome of Direct Actions of Unconstitutionality 5050, 5051 and 5053.