El Tribunal Supremo («TS») defiende que los autónomos societarios puedan beneficiarse de las ventajas en la cotización de la Seguridad Social que disfrutan los autónomos corrientes, entre otras, la famosa «tarifa plana» de 60 euros al mes durante el primer año.
Los emprendedores que constituyen una empresa como socios con un porcentaje igual o superior al 33% del capital social o con un 25% del capital social y ejerciendo funciones de dirección y generencia son considerados «autónomos societarios» y tienen que darse de alta en el régimen específico de este colectivo que tiene particularidades propias que se diferencian del mero autónomo.
Un autónomo que nunca haya estado dado de alta en el Régimen Especial del Trabajador Autónomo («RETA») puede beneficiarse de una tarifa plana de 60€ al mes durante los 12 primeros meses y luego la cuota oficial (de 286,15€) se ve reducida en un 50% y 30% en años sucesivos. Un autónomo societario, en cambio, debe pagar los 367,80€ al mes desde el primer día que se da de alta.
En este contexto, se presenta el asunto que ha resuelto el TS mediante su STS (Sala 3ª, Sección 4ª) número 1.669/2019 de fecha 3 de diciembre de 2019 (RC 5252/2017) en el que una joven de 25 años que se dio de alta como autónoma societaria solicitó que se reconocieran las bases de cotización bonificadas del art. 31 de la Ley 20/2007, de 11 de julio, del Estatuto del Trabajo Autónomo. La joven, que era la primera vez que trabajaba, había constituido una sociedad de responsabilidad limitada unipersonal en la que actuaba como administradora única.
Tanto la Tesorería de la Seguridad Social, como en instancia y apelación desestimaron las pretensiones de la joven. Ahora el TS falla a su favor y entiende que se reconoce el derecho a los beneficios de cotización previstos por ese precepto a quien reúne la condición de socio administrador único de una sociedad unipersonal de responsabilidad limitada y ha sido dado de alta por vez primera en el Régimen Especial de Trabajadores por Cuenta Propia y Autónomos de la Seguridad Social, con la consiguiente obligación de la Tesorería General de la Seguridad Social a reintegrar las diferencias de cotizaciones realizadas. Se desestima el recurso de casación.
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