Article

Tiago Zonta Guerreiro; Josely Lopes Fialho

DOI: 10.22167/2675-6528-202603647

Article derived from a Final Course Work (TCC), with content based on the student’s original work and adapted to the editorial format of the Revista E&S with the support of the ResumeAI tool, an artificial intelligence solution developed by the Pecege Institute for textual synthesis and organization.

Abstract

The maintenance of the 10% social contribution levied on the deposits of the Severance Pay Fund [FGTS], even after its compensatory purpose was achieved, highlighted a tension between tax legality and fiscal pragmatism. The study aimed to analyze, from a legal-accounting perspective, the financial impacts of the contribution established by Complementary Law No. 110/2001 [LC 110/2001], examining its finalistic adherence in light of the patrimonial and financial evolution of FGTS and the understanding established in Topic 846 of the Supreme Federal Court [STF]. The methodology consisted of documentary analysis of the audited financial statements of FGTS, with an emphasis on the evolution of net worth, provisions related to inflationary adjustments, and the collection of the tax between 2006 and 2020, as well as an examination of the jurisprudential controversy submitted to the STF. The results showed that, by the end of 2006, the Fund already presented a patrimonial sufficiency greater than the provisioned liability for inflationary adjustments. From 2007 onwards, collection continued in a context of residual liquidation, consolidating, since 2013, the detachment between the original purpose of the contribution and the material use of the collected resources. The accumulated collection between 2013 and 2019 totaled approximately R$ 33.85 billion, directed towards housing subsidies and urban infrastructure policies. It was concluded that the maintenance of the tax after the exhaustion of its original purpose weakened the centrality of finalistic criteria in the validation of social contributions, with repercussions for legal certainty, regulatory predictability, and tax risk management. The judgment of Topic 846 legitimized this continuity, prioritizing fiscal stability over the original purpose.

Keywords: Social contributions; Allocative efficiency; Economic plans; Judicial pragmatism; Tax referentiality.

1. Introduction

In the current scenario of Brazilian legal and fiscal management, the interpretation of tax regulations has moved away from strict literalness. This change incorporates constitutional, economic, and institutional parameters, especially when confronted with public policy objectives and the State’s need for revenue stability. This interpretive tension is observed in doctrinal contributions that examine the limits of tax legality and the referentiality of contributions.

Authors such as Ataliba (2021), Becker (2018), Jarach (1989), Melo (2018), and Vanoni (1932) examine the limits of tax legality, typicity, and the economic interpretation of Tax Law. In this context, tax legislation expands its interpretative scope, being mobilized for state purposes that transcend the originally posited incidence hypothesis.

The classical doctrine defends the centrality of strict legality and typicity. However, jurisdictional practice, especially by the Supreme Federal Court (STF), has admitted the consideration of consequentialist arguments and fiscal impact. These elements are relevant in the validation of levies, particularly in disputes with high economic impact.

For the strategic management of organizations, this dynamic produces direct effects on regulatory predictability and financial planning. The functional interpretation of tax law, when oriented towards the preservation of public revenue, can strain the material referentiality of contributions. This increases uncertainty regarding the duration and scope of charges affecting business activity. It is discussed whether the economic pragmatism incorporated into judicial reasoning approaches an economic interpretation of Tax Law, with repercussions on the cost structure and capital allocation of companies.

This debate assumes special relevance in the analysis of the ten percent social contribution due by employers, in cases of dismissal without just cause. This contribution is provided for in article one of Complementary Law No. 110/2001 (LC 110/2001) and applies to the amount of all deposits due to the Severance Indemnity Fund (FGTS) during the term of the employment contract, plus the remuneration applicable to the linked accounts.

Law 110/2001 was established with the specific purpose of compensating for the inflationary losses of accounts linked to FGTS, resulting from the purging of economic plans. However, the tax remained enforceable for almost two decades, even after accounting evidence of asset sufficiency and the subsequent material exhaustion of the compensatory purpose that justified its creation.

The judgment of Extraordinary Appeal No. 878,313 (Theme 846) marked a turning point in the interpretation of social contributions within the Brazilian constitutional system. The central controversy consisted of defining whether the levy provided for in LC 110/2001 could subsist after the exhaustion of the specific purpose that justified its creation. The STF established the thesis that the social contribution is constitutional, considering the persistence of the object for which it was instituted.

Social contributions are conceived as linked taxes, whose incidence hypothesis relates to state action that reaches a certain group of taxpayers immediately or indirectly (Ataliba, 2021). The finalistic linkage is the distinctive element of this tax species, presupposing a correlation between the levy and a specific state purpose referable to a determined circle of passive subjects (Ataliba, 2021).

On the constitutional level, article 149 of the Federal Constitution of 1988 grants exclusive competence to the Union to establish social contributions, subjecting them to the tax legal regime. The validity of the contribution depends on the persistence of the purpose that justified its creation, with linkage being a structural requirement for legitimacy (Melo, 2018).

The research is justified by articulating the normative and jurisprudential analysis with the examination of the audited financial statements of the FGTS and the evaluation of the economic impacts on the productive sector. The objective is to verify whether the persistence of the charge represented a legitimate continuation of the social contribution or a collection maintenance detached from its constitutional basis, with implications for tax legal certainty, predictability of business burdens, and allocative efficiency in the economic environment. Thus, the present study aims to examine, from a legal-economic and accounting perspective, the finalistic adherence of the LC 110/2001 contribution throughout its validity, confronting the understanding established in Theme 846 with the patrimonial and financial evolution of the FGTS between 2006 and 2019.

2. Material and Methods

This study adopted a documentary and ex-post-facto approach, based on the legal-accounting analysis of the financial impacts of the social contribution established by art. 1 of Complementary Law No. 110/2001. The choice for documentary research was justified by the examination of written documents and institutional records (SÁ-SILVA; ALMEIDA; GUINDANI, 2009), while the ex-post-facto perspective was adequate for investigating events that had already occurred, without variable manipulation (GIL, 2002).

The investigation was based on official public data from the Severance Pay Guarantee Fund (FGTS), covering the Fund’s asset evolution and the collection of social contributions between 2006 and 2020. Data collection included FGTS annual financial statements, management reports, explanatory notes (regarding deferred assets from inflationary adjustments, provisions for economic plans, and collection items from LC 110/2001), legislation, the legislative process of attempting to extinguish the contribution, and jurisprudence from the Supreme Federal Court (STF).

The data obtained were interpreted through integrated financial and tax analysis, with emphasis on the relationship between FGTS equity, liabilities associated with inflationary adjustments, and social contribution collection. The investigation sought to identify the moment of the Fund’s equity sufficiency, the residual phase of liquidation of remaining obligations, and the subsequent period of collection unlinked from the original purpose of the contribution. Additionally, the potential economic impacts of maintaining the taxation on companies’ liquidity were considered, in light of the allocation of FGTS resources to housing and infrastructure policies after the exhaustion of the compensatory liability.

As this research is based exclusively on secondary and public data, without identification of specific private subjects or entities, submission to the Research Ethics Committee [CEP] was not applied, in accordance with the academic guidelines of the MBA USP/Esalq.

3. Results and Discussion

Definition and tax nature of social contributions in the Brazilian legal system

Social contributions are conceived as linked taxes, whose incidence hypothesis relates to state action that reaches a specific group of taxpayers immediately or indirectly. The finalistic linkage constitutes the distinctive element of this tax species, presupposing a correlation between the charge and a specific state purpose, unlike taxes, whose collection is unlinked (Ataliba, 2021).

The constitutional discipline of contributions requires the observance of a minimum structural core, which includes the existence of a special group of contributors and state action referred to them. The validity of the contribution depends on the persistence of the purpose that justified its creation, with the linkage not being a mere rhetorical element, but a structural requirement of legitimacy (Ataliba, 2021; Melo, 2018).

History of the Contribution Instituted by Complementary Law No. 110/2001

The contribution instituted by art. 1 of Complementary Law No. 110/2001 (LC 110/2001) was created with the specific purpose of recomposing the inflationary adjustments of the accounts linked to the Severance Pay Fund (FGTS) during the periods of the Summer and Collor I Plans. The decision of the Supreme Federal Court (STF) regarding the undercorrection of FGTS balances generated extraordinary pressure on the Fund’s financial structure, with the need to generate assets to support the complementary monetary update credits.

However, in light of the FGTS’s own accounting data, it was found that, at the end of the 2006 fiscal year, the Fund had net assets of R$ 21.38 billion, while the provision for complementary credits from LC No. 110/2001 was R$ 14.63 billion. This positive difference indicated asset sufficiency in relation to the accounting liabilities then recorded for the recovery of inflationary adjustments.

Under these circumstances, maintaining an established contribution for exceptional recomposition as an ordinary source of state financing compromised the coherence between the hypothesis of incidence and the purpose, straining the constitutional limits of this tax species and anticipating the debate that would later be faced in Theme 846 of General Repercussion.

Judgment of Theme 846 of General Repercussion by the STF

The judgment of Extraordinary Appeal No. 878,313 (Theme 846) marked a turning point in the interpretation of social contributions. The controversy lay in defining whether the collection of LC 110/2001 could subsist after the exhaustion of its specific purpose. The STF, under the rapporteurship of Minister Alexandre de Moraes, established the thesis of constitutionality of the charge based on the persistence of the object.

With this decision, the Court repositioned the criterion of referentiality, shifting the debate from the historical purpose (recomposition of inflationary adjustments) to the maintenance of an institutional link to the FGTS. This distinction allowed the overcoming of the original purpose not to automatically invalidate the tax, as long as there was some functional connection with the public policy associated with the FGTS. From a tax governance perspective, the precedent increased the degree of interpretive discretion, impacting predictability and risk management, by allowing greater elasticity in the finalistic linkage.

Conflict of Hermeneutic Matrices

The judgment exposed a clash between a functional-consequentialist approach and the doctrine of strict typicality. The majority position prioritized the preservation of the tax revenue stream and fiscal stability, even in the face of the exhaustion of the historical reason for the contribution.

Functional interpretation and binding elasticity

The majority current started from the premise that Tax Law must consider systemic effects, legitimizing the contribution within the social protection field with a more functional linkage. On the fiscal level, this interpretation preserved an expressive collection flow, prioritizing the financial stability of the State and signaling that a broad institutional connection can sustain taxation, even with the original purpose emptied.

Strict legality and validity matrix

In contrast, the dissenting vote of Minister Marco Aurélio Mello defended tax legality as a limit. Supported by the doctrine of Alfredo Augusto Becker (2018) and Dino Jarach (1989), he argued that the validity of the contribution depends on the persistence of its validity matrix. Once the specific objective of recomposing inflationary expurgations was exhausted, the constitutional basis authorizing the collection was depleted. The continuation of the collection without a new instituting law would be equivalent to a material reconfiguration through interpretive means, in affront to strict legality and legal certainty.

Economic and Management Impacts: Opportunity Cost and Cash Flow Under Topic 846

The empirical analysis of accounting data revealed a mismatch between the legal justification and the economic-financial reality of the Fund. The breaking point was identified in 2006, when the liability related to inflationary adjustments was technically settled. Tax management faced a temporal gap of fourteen years between the exhaustion of the compensatory purpose and the formal termination of the charge in January 2020. During this period, the productive sector continued to bear a burden whose specific legal cause had been overcome, generating a systemic opportunity cost.

Accounting evidence of exhaustion: analysis of the 2006 fiscal year

The verification of the economic sufficiency of the purpose of the social contribution established by LC 110/2001 is based on the analysis of the financial statements for the year 2006. The Net Equity (General Account Fund) recorded in the Balance Sheet totaled R$ 21.38 billion, while the Provision for Complementary Credits LC 110/2001 amounted to R$ 14.63 billion. This positive equity difference showed a financial margin greater than the recorded accounting provision, indicating equity sufficiency to support the estimated obligations.

From a financial flow perspective, the collection of the 10% social contribution reached R$ 2.89 billion, while the amortization of complementary credits reached R$ 5.65 billion in the same period (FGTS, 2006). The amortization, substantially higher than current collection, demonstrated that the liability settlement was sustained by the FGTS’s systemic robustness. The explanatory notes for 2006 also recorded the reduction in the total debt amortization period from fifteen to eleven years, indicating high cash predictability and financial stability. In strategic terms, 2006 represented the fiscal year in which the extraordinary purpose of the social contribution achieved measurable equity sufficiency.

Residual phase of debt settlement (2007–2012)

The capital adequacy identified in 2006 did not imply immediate extinction of obligations, but inaugurated a subsequent stage of residual liquidation of the liabilities constituted by LC 110/2001. Between 2007 and 2012, payments of monetary update complements were made. Accounting-wise, these disbursements no longer reflected a structural insufficiency of the Fund, but the temporal execution of remaining previously provisioned obligations. Thus, the extraordinary purpose of the social contribution had been materially satisfied since 2006, with only its residual execution remaining until 2012. The continuation of collection after this period began to constitute maintenance of revenue unlinked to its original legal cause.

Normative evidence of exhaustion: legislative recognition and presidential veto

Despite the clarity of the 2006 accounting data, the maintenance of the 10% social contribution was guaranteed by a political-fiscal option that shifted the original purpose of the levy. In 2013, the National Congress approved Bill of Law (PLC) No. 200/2012, which aimed to abolish the collection, in light of the FGTS’s solvency.

However, the Presidency of the Republic completely vetoed the matter (Message No. 301/2013), justifying the maintenance of the exaction not by the need to recompose inflationary expurgations, but by the estimated fiscal impact (exceeding R$ 3 billion per year) and the need to preserve investments in public policies, such as the Minha Casa, Minha Vida (PMCMV) Program. This justification highlighted the change in the functional role of the contribution, shifting it from an extraordinary instrument of patrimonial recomposition to a mechanism for financing public housing and investment policies, converting the 10% fine into an ordinary source of state financing.

Evolution of the collection of LC 110/2001 after exhaustion (2013-2019)

Based on the FGTS financial statements between 2007 and 2020, it was observed that the collection of the 10% social contribution remained at a high level even after the material exhaustion of its purpose. In this period, the Fund had registered, since 2012, the full amortization of the remaining balance of deferred assets related to complementary credits and, in subsequent fiscal years, the reduction and subsequent reversal of remaining provisions related to the Economic Plans, evidencing the depletion of the financial need originally linked to LC 110/2001.

The annual collection of the levy remained high, reaching record levels until its legal extinction, effective January 1, 2020. Between 2013 and 2019, collections grew from R$ 3.73 billion to R$ 5.61 billion, with a slight fluctuation in 2018. FGTS reports indicate intensive use of the Fund’s resources for housing subsidies and urban infrastructure policies, including express references to the PMCMV.

Table 1. Evolution of the collection of the social contribution of LC 110/01 after the exhaustion of its purpose (2007-2020)

Year	Collection LC 110/01 (R$ bn)	Purpose status
2007	1,88	Residual settlement
2008	2,04	Residual settlement
2009	2,44	Residual settlement
2010	2,38	Residual settlement
2011	2,79	Residual settlement
2012	3,16	Full exhaustion
2013	3,73	Finalistic deviation
2014	4,11	Finalistic deviation
2015	5,01	Finalistic deviation
2016	5,15	Finalistic deviation
2017	5,20	Finalistic deviation
2018	5,04	Finalistic deviation
2019	5,61	Finalistic deviation
2020	0,22	Post-extinction residual

Source: Original research results

The integrated reading of the historical series shows that, starting in 2013, the social contribution began to operate in a context increasingly dissociated from its original legal cause. With the full amortization of the remaining balance of the deferred asset related to complementary credits in 2012 and the reduction/reversal of the remaining provisions in subsequent fiscal years, revenue collection ceased to have any compensatory function within the scope of FGTS, assuming a merely revenue-generating character. During this period, the nominal expansion of LC 110/2001 revenues occurred in an environment of strengthening equity and continuity of the Fund’s housing and urban investments, which reinforces the perception that the continuation of collection was no longer explained by the settlement of the liability for expurgos, but by the preservation of a stable source of resources.

From an economic-institutional perspective, the trajectory observed between 2013 and 2019 reveals the consolidation of a detachment between the normative purpose and the material use of the levy. The contribution, originally conceived as an extraordinary and temporary instrument for patrimonial recomposition, has become a recurring mechanism for generating revenue for the public sector, with a contributory base restricted to the employer. The accumulated collection volume post-exhaustion (approximately R$ 33.85 billion between 2013 and 2019) reinforces the criticism of deviation from purpose, evidencing the preservation of significant revenue even after the exhaustion of the extraordinary function that justified the institution of the contribution.

The liquidity paradox: the collection of LC 110/2001 and state promotion of MSMEs

To convert the legal analysis into an economic management metric, the confrontation between the amount collected by the social contribution of LC 110/2001 after the exhaustion of its purpose and the volume of credit made available by the National Bank for Economic and Social Development (BNDES) for Micro, Small and Medium Enterprises (MSMEs) is proposed.

According to the BNDES Integrated Annual Report 2019 (BNDES, 2019), the institution’s total disbursements amounted to R$ 55.3 billion in 2019, of which 48% were allocated to MSMEs, corresponding to approximately R$ 26.5 billion. In the same time frame, the accumulated collection of the 10% social contribution between 2013 and 2019 reached approximately R$ 33.85 billion (FGTS, 2019).

Table 2. Comparison between the Accumulated Collection of LC 110/2001 (2013-2019) and BNDES Disbursements for MPMEs (2019)

Comparison metric	Value (R$ billions)
BNDES Disbursements for MSMEs (2019)	26,5
Collection IC 110/01 (2013–2019)	33,85
Relative difference	28%

The comparison highlights a relevant asymmetry in the allocation of liquidity in the economic system. While the State implemented credit policies to expand productive financing, it simultaneously maintained the collection of a charge on labor dismissals whose original purpose had already been exhausted. In aggregate terms, the volume collected by LC 110/2001 in the period exceeded the main annual flow of funding directed to smaller companies. From the perspective of economic efficiency, the phenomenon can be interpreted as a compulsory transfer of liquidity from the productive sector to the public sector, followed by a partial reintroduction of these resources into the economy in the form of directed credit. This circuit implies an additional financial cost and potential allocative inefficiency. The controversy has not lost relevance, as Theme 846 preserved institutional and analytical utility by consolidating jurisprudential understanding that admitted the subsistence of a linked tax even after the exhaustion of its original purpose, projecting effects on legal certainty and the interpretation of social contributions.

Final considerations

The legal-accounting analysis developed showed that the social contribution instituted by Complementary Law 110/2001 had its extraordinary purpose materially exhausted in 2006, when the FGTS net worth exceeded the estimated liability for inflationary adjustments. Between 2007 and 2012, only the residual liquidation of previously provisioned obligations was observed, without structural insufficiency of the Fund. From 2013 onwards, the disappearance of the financial cause that justified the taxation was consolidated.

Nevertheless, the collection of the 10% contribution was maintained until 2019, accumulating approximately R$ 33.85 billion after the fulfillment of its recomposition purpose. The FGTS financial statements indicate that, during this period, the resources began to predominantly finance housing subsidies and urban infrastructure public policies, especially within the scope of the PMCMV, with no remaining link to the liability of inflationary adjustments that legitimized the establishment of the contribution. This functional shift, confirmed by the presidential veto of 2013 and endorsed by the STF in the judgment of Theme 846, transformed the levy into an ordinary source of state financing, detached from its validity matrix. For corporate tax management, this meant, between 2013 and 2019, the maintenance of a charge unrelated to its recomposition purpose, with repercussions on termination costs and corporate liquidity. In summary, the empirical trajectory of the FGTS demonstrates that Theme 846 did not preserve the financial health of the Fund, which was already assured, but legitimized the continuation of collection dissociated from its original legal cause, revealing the tension between fiscal consequentialism, tax legality, and legal certainty in the Brazilian system.

4. Conclusion

The present study aimed to analyze, from a legal-accounting perspective, the financial impacts of the contribution instituted by Complementary Law No. 110/2001, examining its finalistic adherence in light of the patrimonial and financial evolution of FGTS and the understanding established in Theme 846 of the Supreme Federal Court. It was verified that, by the end of 2006, the Severance Pay Fund already presented patrimonial sufficiency, with net worth exceeding the liabilities provisioned for inflationary purges. From 2007 onwards, the collection of the contribution persisted in a context of residual liquidation of obligations, and, since 2013, a detachment between the original purpose of the levy and the material use of resources has consolidated. In this period, the accumulated collection, which totaled approximately 33.85 billion reais between 2013 and 2019, was directed to housing subsidies and urban infrastructure policies, such as the Minha Casa, Minha Vida Program. The presidential veto of 2013 and the judgment of Theme 846 by the STF legitimized this continuity, prioritizing fiscal stability over the original recompositional purpose of the contribution.

The maintenance of exactness after the exhaustion of its original purpose weakened the centrality of purposive criteria in the validation of social contributions, with repercussions for legal certainty, regulatory predictability, and tax risk management. The study’s main contribution lies in the articulation of normative and jurisprudential analysis with accounting evidence and economic impacts, offering a critique of the flexibilization of the purposive referentiality of social contributions. Although the comparison between the collection of LC 110/2001 and the disbursements of BNDES for Micro, Small, and Medium Enterprises was illustrative, it revealed an asymmetry in the allocation of liquidity in the economic system. For future studies, it is suggested to deepen the analysis of the long-term effects of the precedent established in Theme 846 on the interpretation of social contributions and the business environment, as well as to investigate the allocative efficiency of public resources in scenarios of purpose decoupling.

Bibliographic References

Ataliba, Geraldo. Hipótese de incidência tributária. 6. ed. 16ª tir. São Paulo: Malheiros, 2021.

Becker, Alfredo Augusto. Teoria geral do direito tributário. 7. ed. São Paulo: Noeses, 2018.

Gil, Antonio Carlos. Como elaborar projetos de pesquisa. 4. ed. São Paulo

Jarach, Dino; tradução de Dejalma de Campos. O fato imponível: teoria geral do direito tributário substantivo. São Paulo: Revista dos Tribunais, 1989.

Melo, José Eduardo Soares de. Contribuições Sociais no Sistema Tributário. 7. ed. São Paulo: Malheiros, 2018.

Sá-Silva, Jackson Ronie; ALMEIDA, Cristóvão Domingos de; GUINDANI, Joel Felipe. Pesquisa documental: pistas teóricas e metodológicas. Revista Brasileira de História & Ciências Sociais, [s. l.], v. 1, n. 1, p. 1-15, 2009. Disponível em: https://periodicos.furg.br/rbhcs/article/view/10351. Acesso em: 17 abr. 2026.

Vanoni, Ezio; tradução de Rubens Gomes de Sousa. Natureza e interpretação das leis tributárias. Rio de Janeiro: Financeiras, 1932.

Article originating from the Course Conclusion Work of the Specialization in Tax Management of the MBA USP/Esalq

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