On October 16th, the Regional Uniformization Panel of the Federal Specialized Courts of the 4th Region (TRU/JEFs) examined whether receiving the Continuous Benefits of Social Assistance (BPC/LOAS) prevents a beneficiary from contributing to the National Institute of Social Security (INSS) as a facultative low-income insured person, a mode that allows for the collection of reduced-rate, 5% social security contributions. The dispute was to define if the assistance benefit should be considered own income, thereby excluding the right to this contribution mode.
The plaintiff in the action, a 74-year-old woman residing in Porto Alegre, requested that the period from December 2017 to July 2018 be considered as INSS contribution time, during which she made contributions as a facultative low-income insured person while receiving BPC benefits.
Thus, she sought to have sufficient contribution time recognized to receive old-age retirement benefits, a benefit that was denied in the administrative process by the INSS.
When filing the regional uniformization request with the TRU, the author's defense argued that the originating appeal panel, the 1st Appeal Panel of RS, considered BPC to be "a continuous benefit, not a temporary or occasional one, or a transfer of income, and it should be treated as own or family income for the purposes of analyzing the criteria for classification as a low-income facultative insured person; in this context, it is correct to not validate the payments during the period."
The defense maintained that there was a divergence in understanding between the position of the originating appeal panel and the positions adopted by the 3rd Appeal Panel of RS and the 4th Appeal Panel of PR, which, when ruling on similar cases, decided that there is no legal impediment to considering contributions made as a low-income facultative insured person during the receipt of an assistance benefit as a prerequisite for granting old-age retirement benefits.
After examining the case, the TRU denied the author's request. According to the rapporteur, federal judge Marina Vasques Duarte, enrollment in the 5% social security contribution regime requires "the cumulative absence of own income, exclusive dedication to domestic work at home, and belonging to a low-income family, as per Article 201, § 12, of the 1988 Constitution and Article 21, § 2, II, 'b', of Law No. 8,212/1991."
In her vote, she added that "Decree No. 3,048/1999, Article 199-A, § 6, and Instruction Normative PRES/INSS No. 128/2022, Article 107, § 2, XIV, except only from the concept of own income temporary or occasional assistance benefits or income from income transfer programs; already, BPC has a continued and assistance character, not fitting into the exceptions of transitoriness or income transfer provided for in the legislation."
Thus, the judge concluded that "the receipt of BPC constitutes own income and excludes the condition of a facultative insured person without own income, making it impossible to validate the payments made with the favored 5% rate during the period of receipt of the assistance benefit."
Thesis established
When judging the request for regional uniformization in this process, the TRU, unanimously, established the thesis:
Receiving the Continuous Performance Benefit (BPC/LOAS) constitutes the beneficiary's own income, which prevents the classification as a facultative insured without own income and makes the validation of the collection of social security contributions at the reduced rate of 5% (article 21, § 2, II, 'b', of Law No. 8,212/1991) impossible.
ACS/TRF4 (acs@trf4.jus.br)
(Photo: Senate Agency)