It Has been pacified since 2014 that the charitable entities that possess the CEBAS, or who fulfil the requirements of the Federal Law no longer need to contribute to the PIS 1 on payroll.
This tax was declared undue by the Constitutional immunity that these entities possess by the STF.
Therefore, the charitable entities will have the right to repay the paid value of 05 retroactive years and the right to no longer collect such tribute!
Menu: TAX. EXTRAORDINARY APPEAL. GENERAL REPERCUSSION. RELATED GENERAL REPERCUSSION. RE 566,622. TAX IMMUNITY. ART. 150, VI, C, CF/88. IMMUNITY TO CONTRIBUTIONS. ART. 195, § 7, CF/88. PIS IS A CONTRIBUTION TO SOCIAL SECURITY (ART. 239 C/C ART. 195, I, CF/88). The CONCEPTUATION And The LEGAL REGIME OF the TERM “INSTITUTIONS OF SOCIAL ASSISTANCE And EDUCATION” (ART. 150, VI, C, CF/88) APPLIES BY ANALOGY To the PHRASE “CHARITABLE ENTITIES OF SOCIAL ASSITENCY” (ART. 195, § 7, CF/88). THE CONSTITUTIONAL LIMITATIONS TO THE POWER OF TAXATION ARE THE SET OF PRINCIPLES AND TAX IMMUNITIES (ART. 146, II, CF/88). THE EXPRESSION “EXEMPTION” USED IN ART. 195, § 7, CF/88, HAS The CONTENT OF TRUE IMMUNITY. ART. 195, § 7, CF/88, REPORTS To LAW No. 8.212/91, IN ITS ORIGINAL WORDING (MI 616/SP, Rel. Min. Nélson Jobim, Full, DJ 25/10/2002). ART. 1st, OF the LAW No. 9.738/98, WAS SUSPENDED BY the SUPREME COURT (ADI 2,028 MC/DF, Rel. Moreira Alves, Pleno, DJ 16-06-2000). THE SUPREME COURT INDICATES THAT ONLY COMPLEMENTARY LAW IS REQUIRED FOR THE DEFINITION OF ITS OBJECTIVE LIMITS (MATERIALS), AND NOT FOR THE FIXING OF THE NORMS FOR THE CONSTITUTION AND FUNCTIONING OF THE IMMUNE ENTITIES (FORMAL OR SUBJECTIVE ASPECTS), WHICH MAY BE CARRIED OUT by ORDINARY LAW (ART. 55, OF the LAW No. 8.212/91). THE ENTITIES THAT PROMOTE BENEFICENT SOCIAL ASSISTANCE (ART. 195, § 7, CF/88) ARE ONLY ENTITLED To IMMUNITY IF They FULFIL CUMULATIVELY THE REQUIREMENTS OF The ART. 55, OF LAW No. 8.212/91, IN ITS ORIGINAL WORDING, And THOSE PROVIDED for IN ARTICLES 9 And 14, OF the CTN.
ABSENCE OF CONTRIBUTIVE CAPACITY OR APPLICATION OF the PRINCIPLE OF SOCIAL SOLIDARITY IN REVERSE FORM (ADI 2,028 MC/DF, Rel. Moreira Alves, Pleno, DJ 16-06-2000). INAPPLICABILITY OF ART. 2nd, II, LAW No. 9.715/98, And ART. 13, IV, DA MP No 2.158 -35/2001, TO ENTITIES FULFILLING THE REQUIREMENTS OF ART. 55 OF LAW No. 8.212/91, And SUPERVENIENTE LEGISLATION, WHICH Is NOT APPARENT from THE UNCONSTITUTIONALITY of THESE LEGAL DEVICES, BUT OF IMMUNITY IN RELATION TO THE CONTRIBUTION TO PIS AS A TECHNIQUE OF INTERPRETATION ACCORDING TO THE CONSTITUTION. EX POSITIS, CONHEÇO DO RECURSO EXTRAORDINÁRIO, MAS NEGO-LHE PROVIMENTO CONFERINDO EFICÁCIA ERGA OMNES E EX TUNC.
1. Immunity to taxes granted to institutions of education and social assistance, in a common device, emerged in CF/46, Verbis: Art. 31, V, “B”: to The Union, to the States, to the Federal District and to the Municipalities it is forbidden (…) to launch tax on (…) Temples of any cult, goods and services of political parties, educational institutions and social assistance, provided that their rents are applied In the country for its purposes. 2. The CF/67 and CF/69 (Constitutional Amendment No. 1/69) reiterated the immunity in the provisions of art. 19, III, “C”, Verbis: It is forbidden to the Union, the States, the Federal District and the Municipalities (…) to impose tax on (…) The assets, income or services of political parties and institutions of education or social assistance, observing the requirements of the law . 3. The CF/88 traced archetype with even clearer contours, verbis: Art. 150. Without prejudice to other guarantees secured to the taxpayer, the Union, the States, the Federal District and the Municipalities are prohibited: (…) Saw. Institute taxes on: (…) c) Patrimony, income or services of political parties, including their foundations, of the workers ‘ unions, of the institutions of education and social assistance, not for profit, met the requirements of the law;(…) § 4. The seals expressed in item VI, points “B” and “C”, comprise only the assets, income and services related to the essential purposes of the entities mentioned therein; Art. 195. Social Security will be financed by the entire society, directly and indirectly, under the law, through resources from the budgets of the Union, the States, the Federal District and Municipalities, and the following social contributions: (…) § 7. Social welfare charitable entities that meet the requirements established by law Are exempt from social security contributions. 4. The Art. 195, § 7, CF/88, although not inserted in the chapter of the National Tax System, but explicitly included topographically in the theme of social security, unequivocally deals with tax matters. Because Ubi eadem ratio ibi idem jus, being able to extend to the institutions of stricto sensu, education, health and Social Security assistance, celing to the extent that the thesis remains that this article applies only to entities that have as their objective Only the provisions of art. 203 of the CF/88 (ADI 2,028 MC/DF, Rel. Moreira Alves, Pleno, DJ 16-06-2000). 5. The Social Security provided for in art. 194, CF/88, understands the welfare, health and social assistance, highlighting that the latter two are not linked to any kind of consideration by their users, the content of articles 196 and 203, both of CF/88. This Characteristic distinguishes the social security of the other subspecies of social security, according to the jurisprudence of this Supreme Court in the sense that its character is contributory and mandatory affiliation, with a skein in art. 201, all from CF/88. 6. PIS, A singular tax species contemed in art. 239, CF/88, does not subtract from the concomitant pertinence to the “genus” (plural) of the item I, art. 195, CF/88, Verbis: Art. 195. Social Security will be financed by the entire society, directly and indirectly, under the law, through resources from the budgets of the Union, the States, the Federal District and Municipalities, and the following social contributions: I – the Employer, the company and the entity it equalled in the form of the law, Incidents on: (amended by Constitutional Amendment No. 20 of 1998) A) the payroll and other income from the work paid or credited, to any title, to the physical person who provides him/her service, even without employment; (Included by Constitutional Amendment No. 20 of 1998) b) revenue or invoicing; (Included by Constitutional Amendment No. 20 of 1998) c) profit; (Included by Constitutional Amendment No. 20 of 1998) II – The worker and other social security policyholders, not focusing on retirement and pension contributions granted by the general social welfare regime of which art. 201; (amended by Constitutional Amendment No. 20 of 1998) III – On the revenue of prognostic contests. IV – from the importer of goods or services from abroad, or from whom the law to it equated. (Included by Constitutional Amendment No. 42, from 19.12.2003)… 7. The National Tax System, seen in the chapter of the Federal Charter, encampthe expression “social welfare and education institutions” prescribed in art. 150, VI, “C”, whose conceptuation and legal regime applies, by analogy, to the term “charitable entities of social assistance” contained in art. 195, § 7, in the light of the historical interpretation of the texts of CF/46, CF/67 and CF/69, and of the assumptions set out in the entry of the Súmula N ° 730. It Is that until the advent of CF/88, the concept of “social security” had not yet been coined, according to the terms defined by art. 203, Inexistent clear distinction between welfare, social assistance and health, based on the criteria of generality and gratuity. 8. The constitutional limitations to the power to tax are the set of principles and other disciplinary rules of the definition and exercise of tax competence, as well as immunities. Art. 146, II, of the CF/88, regulates the constitutional limitations to the power to tax reserved to supplementary law, until then lacking in formal edition. 9. The exemption provided for in the Federal Constitution (art. 195, § 7) has the content of rule of suppression of tax competence, terminating true immunity. Immunities have the content of petrous clauses, expressions of fundamental rights, in the form of art. 60, § 4, of the CF/88, making controversial the possibility of its regulation through the constituent power derived and/or even more, by the ordinary legislator. 10. The phrase “exemption” mistakenly used by the constituent legislator stems from historical circumstance. The first Legislative decree to deal with the matter was Law No. 3.577/59, which exempted the pension contribution rate of the Institutes and
Retirement and Pensions to entities of philanthropic purposes recognized of public utility, whose members of their board did not perceive remuneration. Thus, as immunity to social contributions was only inserted by § 7 of art. 195, CF/88, the undisputed transposition of its content, with the bias of the ordinary exemption legislator, generated the controversy, which had been overcome by the jurisprudence of the Supreme Court in order to deal with immunity. 11. Immunity, under the aegis of CF/88, has received specific regulations in several common laws, namely: Law No. 9.532/97 (regulating the immunity of art. 150, VI, “C”, referring to taxes); Laws No. 8.212/91, No. 9.732/98 and No. 12.101/09 (regulating the immunity of art. 195, § 7, referring to contributions), whose exact meaning has been delineated by the Supreme Federal Court. 12. The law to which the constitutional device is contained in § 7 of art. 195, CF/88, according to the Federal Supreme Court, is the Law No. 8.212/91 (MI 616/SP, Rel. Min. Nélson Jobim, Full, DJ 25/10/2002). 13. Immunity against contributions to social security, as provided for in § 7 of art. 195, CF/88, is regulated by art. 55, of Law No. 8.212/91, in its original wording, since the changes intended by art. 1st, of Law No. 9.738/98, to this article were suspended (ADI 2,028 MC/DF, Rel. Moreira Alves, Pleno, DJ 16-06-2000). 14. The tax immunity and its legitimation requirements, which could restrict its scope, were established in art. 14, of the CTN, and were welcomed by the new constitutional text of 1988. That is Why it is reasonable to allow other statements related to the intrinsic aspects of the immune institutions to be regulated by ordinary law, all the more so that the tax law uses the concepts and categories elaborated by Private legal order, expressed by the infraconstitutional legislation. 15. The Supreme Court, guardian of the Federal Constitution, indicates that only complementary law is required for the definition of its objective limits (materials), and not for the establishment of the norms for the constitution and functioning of the immune entities (formal or subjective), which may be conveed by ordinary law, as you are occurring with art. 55, of Law No. 8.212/91, which may establish formal requirements for the enjoyment of immunity without characterizing offense to art. 146, II, of the Federal Constitution, ex VI of the sections I and II, Verbis: Art. 55. It Is exempt from the contributions that they treat the arts. 22 and 23 of this Law the charitable entity of social assistance that meets the following requirements cumulatively: (Repealed by Law No. 12,101, of 2009) I – be recognized as of federal and state public utility or the Federal District or municipal; (Repealed by Law No. 12,101 of 2009); II – Be the bearer of the Certificate and the Registration of Entity of Philanthropic Purposes, provided by the National Council for Social Assistance, renewed every three years; (amended by Law N º 9,429, of 26.12.1996)…. 16. The objective or material limits and the definition of the subjective or formal aspects meets the principles of proportionality and reasonableness, not implying a significant restriction of the scope of the interpreted device, i.e. the concept of Immunity, and reduction of taxpayers ‘ guarantees. 17. Entities that promote beneficent social assistance, including educational or health care, only live up to the granting of the immunising benefit if they fulfil cumulatively the requirements of the art. 55, of Law No. 8.212/91, in its original wording, and those prescribed in articles 9 and 14, of the CTN. 18. Non-profit education and welfare Institutions are private entities created for the purpose of serving the collectivity, collaborating with the State in those areas whose performance of the Public Power is deficient. Consectariamente, et pour cause, the Constitution determines that they are dishonered from some taxes, in particular taxes and contributions. 19. The ratio of the abolition of tax competence is based on the absence of contributive capacity or the application of the principle of solidarity in an inverse way, it is worth saying: the lack of taxation of social contributions stems from the collaboration Entities provide to the State. 20.
The Supreme Court has already decided that article 195, § 7, of the Magna Carta, in relation to the requirements to be provided to the charitable entities of social assistance to enjoy the immunity foreseen therein, determines only the existence of a law that regulates them; Which implies saying that the Magna Carta broadly allude to the “law” to establish a legal reserve principle, an expression comprising both ordinary legislation and supplementary legislation (ADI 2,028 MC/DF, Rel. Moreira Alves, Pleno, DJ 16-06-2000). 21. It is a preliminary ruling, pending in the Supreme Court, the definitive dispute over the concept of a social assistance entity for the end of the declaration of immunity discussed, such as those relating to the requirement or not of the gratuity of services Or not the understanding of the charitable institutions of restricted clienteles. 22. In Casu, it is necessary to deny that right under the pretext of the absence of legal regulation, in the light of the judgment under appeal, which concluded by the fulfilment of the requirements on the part of the defendant under art. 55, of Law No. 8.212/91, conditioned to its framing in the concept of social assistance delimited by the STF, due to alleged claim that the prescriptions of articles 9 and 14 of the National Tax Code do not regulate § 7, of art. 195, CF/88. 23. It Is inunionable in the Supreme Court to meet the requirements established in law (art. 55, of Law No. 8.212/91), since, for that, it would be necessary to analyze infraconstitutional legislation, a situation in which the affront to the Constitution would be only Indirect, or, also, the revolvers of evidence, attracting the application of the entry of Súmula No. 279. Previous. AI 409.981-AgR/RS, Rel. Min. Carlos Velloso, 2nd Class, DJ 13/08/2004. 24. The legal entity to be entitled to the immunity of § 7 of art. 195, CF/88, with respect to social contributions, must meet the requirements laid down in articles 9 and 14 of the CTN, as well as in art. 55, of Law No. 8.212/91, The Charitable entities of social assistance, as a consequence, do not submit to the tax regime provided for in art. 2, II, of Law No. 9.715/98, and in art. 13, IV, of the MP no 2.158 -35/2001, applicable only to those other entities (philanthropic, recreational, cultural and scientific institutions and civil associations providing the services for which they have been instituted and make them available Of the Group of persons to which they are intended, non-profit) that do not fulfil the requirements of art. 55 of the Law No. 8.212/91, or of the supervening legislation on the matter, post not covered by constitutional immunity. 26.. Ex Positis, I know of the extraordinary appeal, but I deny him giving the thesis of the general repercussion and efficacy lift omnes and ex tunc. Previous. RE 93.770/RJ, Rel. Min. Soares Muñoz, 1st Class, DJ 03/04/1981. RE 428.815-AgR/AM, Rel. Min. Sepúlveda Belongs, 1st Class, DJ 24/06/2005. ADI 1.802-MC/DF, Rel. Min. Sepúlveda Belongs, Full, DJ 13-02-2004. ADI 2,028 MC/DF, Rel. Moreira Alves, Full, DJ 16-06-2000. (RE 636941, Rapporteur: Min. LUIZ FUX, Full Court, judged in 13/02/2014, ELECTRONIC JUDGMENT DJe-067 DIVULG 03-04-2014 PUBLIC 04-04-2014).
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