STF judges this Wednesday (23) rule of the “review of the whole life” of the INSS

The Federal Supreme Court (STF) returns to judge, on Wednesday (23) the “review of the whole life” of the INSS. The right, if granted, allows the retiree to use his entire contributory life to calculate the benefit, and not just wages after July 1994.

The rule can benefit people who had a higher average salary before that date. According to the Union, the impact of the revision would be billionaire.

The tendency is for the rule to be approved, because the majority of ministers already voted in favor of the lifetime review in March.

The analysis was suspended at the request of Minister Kassio Nunes Marques. At the time, the score was 6-5.

The rapporteur for the action was Minister Marco Aurélio, who retired after giving a favorable vote. He was replaced by André Mendonça, but in June the Court decided that the votes of retired ministers should be maintained.

The time frame of July 1994 was defined in 1999. Until then, the calculation of the benefit considered the average of contributions over the last 3 years. Afterwards, a law was passed that determined that the average would be made with lifetime wages, but from July 1994 – the moment of stabilization of the real.

According to Diego Cherulli, vice-president of the Brazilian Institute of Social Security Law (IBDP), this transitional rule was intended not to harm those already in the system and to benefit most policyholders. “The legislator already knew that most people, if the general rule were applied, would have a reduction in their income”, observes the expert.

Therefore, specialists point out that the “review of a lifetime” is an exception rule. “It is not necessarily beneficial to all retirees and pensioners. It is necessary to simulate the value without the lock in July 1994 and compare it with the benefit already granted”, observes Kerlly Hubach, professor of Tax and Social Security Law at Fundação Getúlio Vargas (FGV).

The thesis also does not apply to all cases. “Anyone who joined after November 1999 is not eligible for the thesis, as the rule challenged in the Judiciary does not apply to them”, says Hubach.

The professor also highlights the decay of the right to review, which occurs ten years after the first payment. “For example, those who retired in May 2012 and did not request the review will have lost their right in June 2022”, explains the professor.

Cherulli also points out that there are rare cases in which the review will be beneficial. An example is the “inverted working life”, when the worker starts contributing more and, over time, starts contributing less.

Another case is that of people who have always received salary caps, a minority among taxpayers.

Impacts on Social Security

The Superior Court of Justice (STJ) has already decided, in 2019, in favor of a lifetime review. The STF is now analyzing the constitutionality of the rule with a focus on the damage to public coffers that it would bring.

Dyna Hoffmann, lawyer and CEO of SGMP Advogados, explains that the main argument of the Union against the lifetime review “is the increase of a benefit without the due consideration, offending the financial and actuarial balance of the General Social Security System”.

According to the government’s economic team, the impact would be BRL 46 billion over ten years. But experts consider that this calculation is overestimated because the number of people benefited would not be so high. “They only made an average of the value of the increase and retroactive values, considering all the active benefits”, criticizes Cherulli.

The STF ministers who already voted against the revision in a previous judgment also pointed out the difficulty in accounting for the new benefits.

“Among the practical arguments is the removal of periods with high inflation rates, before the Real Plan, in addition to the administrative difficulties in recovering reliable information in social security databases. Imagine collecting data from the 1970s,” notes Hubach.