In elections, whether municipal or general, it is common for a party or candidate to hire individuals for various positions such as electoral cable roles, specific and technical advisory functions, and administrative functions.
The mode of employment is clearly regulated by Law No. 9.504/1997 (General Electoral Law), Article 100 of which guarantees the absence of an employment relationship between an employee and a candidate or a political party in the following terms:
“Article 100. The recruitment of personnel to provide services in the course of election campaigns does not give rise to an employment relationship with a contracting candidate or party, while the provisions of subparagraph h of paragraph V of Article 12 of Law No. 8212, July 24, 1991, apply to the hired person.
One paragraph. The provisions of the single paragraph of Art. 15 of Law No. 8212 of July 24, 1991.”
It should be noted that the purpose of the contract is to provide services in election campaigns. That is, if this target is rejected, a CLT-managed employment relationship can be set up, provided, of course, that the employment elements are filled.
In this sense, for example, the recent precedent of the Regional Labor Court of the 3rd district of July 22, 2022:
«PROVISION OF SERVICES IN ELECTION CAMPAIGN. EMPLOYMENT RELATIONSHIPS ARE NOT DETERMINED. The provision of services in electoral campaigns generally does not characterize an employment relationship, in accordance with Article 100 of Law no. h paragraph V of article 12 of Law No. 1991. It remains proven in the case that the plaintiff provided services exclusively during the election campaign, which excludes the alleged employment relationship (TRT 3rd region; PDE: 0010693-63.2021.5.03.0110 (ROT); availability : 22.07.2022, DEJT/TRT3/Cad.Jud, p. 1318; jury: 4th panel; editor: convened by Adriana Campos de Souza Freire Pimenta)”
Thus, the employment of workers for election campaigns by both candidates and political parties does not constitute an employment relationship regulated by the CLT. The applicable regime is the provision of services of the Civil Code, articles 593 et seq.
As for tax issues, it is necessary to understand that this employee will have both a social contribution and income tax.
This social worker will be treated as an individual taxpayer for social security purposes in accordance with article 100 of Law no.
Your income will be taxed as it is derived from work, in accordance with articles 38 and 685 of Decree no. 9,580/2018 governing income tax.
As for the tax liability for these taxes, they should be decided separately between the figure of the candidate and the political party.
It is first necessary to understand that the candidate, although he receives a CNPJ upon registration, is not a legal entity. The CNPJ is intended only for the financial control of a candidate’s campaign. The candidate remains an individual, with the difference that in the course of a political campaign he receives a special legal qualification for a special practice of performing certain legal actions.
Political parties, on the other hand, are legal entities, so they are clearly defined in this regard in the Civil Code, see article 44. in words:
“Art. 44. Legal entities of private law are:
i – associations;
II – companies;
III – basics.
IV – religious organizations;
V – political parties”.
Having made these initial clarifications, it turns out that in relation to a candidate who employs workers, he is exempt from paying social security contributions as a taxpayer, since he is not considered a legal entity and therefore not subject to withholding.
So much so that the candidate does not appear in the list of the only paragraph of Article 12 of Decree No. 3.048/1999 and paragraph 4 of Article 3 of the RSE Regulation No. 971/2009.
With regard to political parties, the work quota and the employer’s bill must be taken into account.
As regards the employer’s quota, they are exempted under the single paragraph of the aforementioned article 100 of Law no. 9,504/1997, since it does not consider a political party as a company for the purposes of article 15 of law no. 1991.
However, the worker’s quota, although it is the taxpayer, is still the responsibility of the political party to be responsible for the taxes. This is due to the fact that paragraph II of the only paragraph of Article 12 of Decree No. 3048/1999 and paragraph III of paragraph 4 of Article 3 of the Normative Instruction of the RFB No. 971/2009 equate an association, including a political party, with a society.
As far as taxes are concerned, there is an income tax, which has a system similar to that of social security contributions.
For income tax purposes and due to the absence of an employment relationship, an electoral campaign worker is considered self-employed in accordance with Article 38 of Decree No. 9580/2018.
And according to article 685 of Decree No. 9580/2018, only legal entities are obliged to withhold income tax from the self-employed, exempting natural persons – candidates from this obligation:
“Article 685. Income from unpaid work paid by legal entities, including cooperatives and public legal entities, to individuals (Law No. 7713 of 1988, art. 7, chapter, paragraph II).”
From all these considerations, we have the following summary of the recruitment regime and taxation of campaign workers:
a) the employee in the election campaign does not have an employment relationship, but the purpose of his employment must be related to the election campaign;
b) the employee is considered an individual taxpayer and his income is taxed depending on the income tax category;
c) if the candidate is hired, he is exempt from withholding social security contributions and income tax;
d) if he employs a political party, he is obliged to withhold social security contributions and income tax; in addition, a political party is exempt from the employer’s quota.
