Da constitucionalidade da contribuição social incidente sobre os subsídios dos titulares de mandato eletivo federal

Abstract

The present study consisted in demonstrating the constitutionality of the social contribution incident on the subsidies of holders of the federal elective mandate, inserted in the Brazilian legal system through Law 10,887, dated 06.06.2004, in view of discussions initiated in connection with Law No. 9,506 / 97, which for almost nine years tried to institute such recovery. Law no. 9,506 / 97, through article 13, paragraph 1, created a new compulsory insured person of the General Social Security Regime by including in item I of article 12 of Law nº 8.212 / 91 the letter "h". When transforming the federal, state and municipal elective mandate holder not bound to a special regime of compulsory pensioner of the general regime, this ordinary law instituted a new source for the cost of general social security. However, in view of the constitutional order in force at the time of its publication, it was only through the qualified process of the complementary law that this kind of innovation was possible. Judging Extraordinary Appeal 351.717 / PR, in addition to the non-compliance with the formal requirement of the complementary law, the Federal Supreme Court stated that political agents holding elective office could not be equated with the "workers" of Article 195, II of the Constitution. For these reasons, it declared incidentally the unconstitutionality of the contribution levied on the subsidies of the holders of elective office, communicating its decision to the Federal Senate, which suspended the execution of the mechanism through Resolution no. 26 of June 21, 2005. On 15.12.1998, Constitutional Amendment No. 20 amended the aforementioned Art. 195 of the Constitution, broadening the scope of incidence of social contributions. In view of this opening, Law No. 10,887 is brought to light, reintroducing the contribution previously declared unconstitutional. This time there was no taint to the constitutional order, since the law itself predicted the incidence of contributions on the remuneration of the other insured persons of the general regime, among them the parliamentarians deprived of their own pension regime. Based on the narrated elements, a bibliographical and jurisprudential review was carried out on the issues raised during the validity of Law 9,506 / 97. In addition, it took care of the research to analyze aspects of the control of constitutionality of norms, specifically the control carried out by the diffuse or indirect route, focusing on the effects of the incidental declaration of unconstitutionality to the Supreme Court and its extension to the other organs of the Judiciary and the Executive Branch, without, however, binding the legislator, who can innovate in the juridical order without disfiguring the authority of the decisions of the Supreme