Recently, on May 11, 2023, it was published in the Official Gazette of the Union the Solution of Cosit Consultation No. 87/2023, in which the IRS clarifies that the reimbursement of internet and electricity expenses in the teleworking regime - - is not allowed. home office this is an indemnity amount, provided that it is necessary for the company's activity and for the maintenance of the source of production and duly proven by the beneficiary through appropriate and suitable documentation.

Consequently, the expenses are deductible in determining the real profit of the companies and the worker does not need to include the amount received under such titles in the calculation basis of his Income Tax.

The aforementioned response of the tax agency reinforces the understanding enshrined in the reform of labor legislation, which amended § 2 of article 457 by expressly mentioning that the consideration of amounts, even if usual, paid as a subsistence allowance are not part of the employee's remuneration, are not incorporated into the Employment Contract and do not constitute the basis for any labor and social security charge. 

It should be noted that there is no legal provision obliging the company to pay for the employee's expenses in home office. Even Law No. 14,442 of 2022, created to establish the rules of teleworking, does not mention the obligation of funding by the employer. Moreover, in its article 75-D, the Consolidation of Labor Laws conditions such need for payment to the existence of a written contract between the parties - either with the category of workers or by regulation via the company's internal regulations.

 In a survey of the case law of the Regional Labor Court of the 4th Region, there is divergence among the classes regarding the need to pay the employee's expenses in home office Muchas decisiones están condicionadas a que el empleado demuestre la necesidad de recibir el reembolso.

However, the decisions of the collegiate body determining the integration of the costing funds in question in the worker's salary base are rare, which fatally occurs when companies do not observe the form required to make the payment: the orientation is that the installment is paid as a subsistence allowance or reimbursement, always based on the receipts of the amounts paid by the employee, and it is essential that the company requires proof of expenses from the worker.

Within this context, there is no doubt that the allowance is of an indemnity nature and corresponds to payment to reimburse the employee for expenses necessary for the performance of his duties, not being part of the salary. 

Finally, the allowance must be equal to or close to the value of the electricity and internet bills usually paid by the employee; since if the increase in assets is demonstrated by the employee in a labor lawsuit, the indemnity nature of the allowance may be removed.

By: Joice Müller

Labor Law | CPDMA Team