Falhas em registros e falência de empresas afetam aposentadoria

Por Tribuna

 Para dar entrada e garantir a aposentadoria, os segurados do Instituto Nacional do Seguro Social (INSS) precisam, entre outras exigências, comprovar o tempo de contribuição.

 Para comprovar filiação à Previdência Social, tempo e salário de contribuição são utilizadas as informações constantes do Cadastro Nacional de Informações Sociais (CNIS) do INSS. Entretanto, segundo os especialistas, nem sempre as informações do CNIS estão corretas, o que pode prejudicar o segurado no momento do deferimento do benefício.
 O advogado previdenciário Celso Joaquim Jorgetti, da Advocacia Jorgetti, explica que em casos de dificuldades ou obstáculos na comprovação da contribuição “o segurado pode incluir, alterar ou excluir informações desse banco de dados, apresentando documentos adicionais que servem para comprovar o vínculo do trabalho e, assim, da contribuição obrigatória”.
 De acordo com o professor da Universidade Federal do Paraná e autor de obras em Direito Previdenciário, Marco Aurélio Serau Junior, a principal dificuldade na obtenção da aposentadoria decorre do “buraco” e falhas na comprovação do tempo de contribuição e do tempo de serviço.
 “Um tipo de problema diz respeito a empresas que, posteriormente, venham a falir ou mesmo encontram o destino da dissolução, ou seja, simplesmente desaparecem. Nesses casos, desaparecem também seus documentos, registros contábeis, trabalhistas, tributários, entre outros. Tudo isso gera um grande prejuízo ao segurado”, afirma.
 Na visão do professor, essa dificuldade escancara também a falta de fiscalização do Ministério do Trabalho e do INSS em relação à legislação trabalhista, tributária e contábil das empresas. “O INSS adota uma postura estritamente legalista com relação a esses problemas. E se o tempo não consta no CNIS, ainda que efetivamente trabalhado, a autarquia não costuma aceitar e nem liberar a aposentadoria”, alerta Serau Junior.

Falência

 Recentemente, uma segurada do INSS precisou procurar a Justiça para conseguir ter reconhecido seu direito à aposentadoria por tempo de contribuição. O imbróglio se deu num período de quase quatro anos em que a senhora trabalhou numa empresa que tempos depois faliu, tempo esse desconsiderado pelo órgão previdenciário pelo fato de o mesmo não estar anotado no CNIS.
 No caso, a segurada deu entrada na aposentadoria em junho de 2016. Após a análise de documentos, o INSS indeferiu o pedido alegando que não poderia considerar o vínculo de emprego de 01/03/1974 a 01/12/1977 pois no CNIS não constava a data de saída da empresa e a sua Carteira de Trabalho e Previdência Social (CTPS) era extemporânea.

Sem a soma desse período, a segurada alcançava pouco mais de 28 anos de contribuição, o que impossibilitaria o direito ao benefício.

 Para o advogado Thiago Luchin, sócio do escritório Aith, Badari e Luchin Advogados e representante da segurada na ação, o não reconhecimento de outros documentos comprobatórios por parte do INSS representou um grande erro, não sobrando outra alternativa senão procurar os tribunais em busca da garantia do direito ao benefício.
 “No procedimento administrativo, foi aberto exigência para apresentar documentos que comprovassem o trabalho. Porém, a empresa faliu e não foi encontrado qualquer informação. Após o indeferimento, acionamos os órgãos judiciários e, por meio de informações do FGTS (Fundo de Garantia do Tempo de Serviço) e recolhimentos ao sindicato da categoria que representava a trabalhadora constatadas em sua carteira de trabalho, conseguimos demonstrar a idoneidade e o vínculo, o que foi prontamente reconhecido”, explica Luchin.
 Na decisão, a juíza federal Karina Lizie Holler, do Juizado Especial Federal da 3ª Região, não só determinou a concessão da aposentadoria com 32 anos e um mês de contribuição, no valor de R$ 2.391,41, como também exigiu que o INSS pagasse os benefícios atrasados, no valor acumulado e corrigido de R$ 35.431,18.
 “O processo de pedido para concessão de aposentadoria exige muita atenção por parte do segurado. A legislação complexa e as inúmeras exigências muitas vezes provocam impedimentos contraditórios, cabendo ao contribuinte buscar na justiça seu pleno direito”, alerta Luchin.

Comprovação

 A comprovação do tempo de contribuição e do tempo de serviço nem sempre é fácil. Os especialistas ressaltam que a Justiça tem sido um caminho recorrente. “Caso o INSS não reconheça, mesmo que documentadas, as provas levadas pelo segurado, ele pode e deve recorrer à Justiça”, orienta o professor Serau Júnior.
 O advogado Celso Jorgetti explica que, na prática, o INSS simplesmente emite uma exigência para que o segurado apresente as provas do vínculo empregatício e dos recolhimentos previdenciários no prazo de 30 dias, sob pena de indeferimento do benefício.
 “Geralmente o segurado tem muita dificuldade de apresentar os documentos exigidos, ou porque a empresa se nega a fornecê-los ou porque ele não os possui e, em alguns casos, porque a empresa já encerrou as suas atividades e o segurado não consegue localizar os sócios ou o contador da empresa para obter os documentos exigidos pelo INSS, o que acarreta o indeferimento do benefício”.

Documentos que servem para comprovar tempo de trabalho:

 – Carteira Profissional ou Carteira de Trabalho e Previdência Social.
 – Original ou cópia autenticada da Ficha de Registro de Empregado, ou Livro de Registro de Empregados, onde conste o referido registro do trabalhador acompanhada de declaração fornecida pelo empregador, devidamente assinada e identificada por seu responsável.
 – Original ou cópia autenticada do Contrato Individual do Trabalho.
 – Original ou cópia autenticada de Acordo Coletivo de Trabalho, desde que caracterize o segurado como signatário e comprove o registro na respectiva Delegacia Regional do Trabalho.
 – Original ou cópia autenticada do Termo de Rescisão do Contrato de Trabalho ou comprovante de recebimento do FGTS referente ao período em que o segurado trabalhou na empresa
 – Extrato analítico da conta vinculada do FGTS, com carimbo e assinatura do funcionário da Caixa Econômica Federal, desde que constem dados do empregador, data de admissão, data de rescisão, datas dos depósitos e atualizações monetárias dos saldos, ou seja, dados que remetam ao período em que se quer comprovar.
 – Original ou cópia autenticada de recibos de pagamento contemporâneos ao fato alegado, com a necessária identificação do empregador e do empregado;
 Outros documentos contemporâneos que possam a vir a comprovar o vínculo de trabalho junto ao empregador, tais como holerites de pagamento; Relação Anual De Informações Sociais (Rais), onde possa constatar o vínculo alegado; Certificado de Reservista, desde que indique o tempo total da prestação de serviço militar obrigatório.
 Certidão emitida pelo Ministério da Defesa, desde que indique o tempo total de serviço militar; Certidão de Tempo de Contribuição emitida pela União, estados, DF e municípios, nos moldes da Portaria 154/2008 do MPS para períodos trabalhados com recolhimento a Regime Próprio de Previdência do próprio órgão.

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