Legal Route and Necessary Documentation
Posted: Thu Jan 30, 2025 10:50 am
The Other Side of the Coin
In parallel, in 2017, the STF ruled on Theme 342, which dealt with the ICMS borne by a charitable entity as a de facto taxpayer, similar to the case of the hospital in relation to the IPI. The STF decided that:
“Subjective tax immunity applies to its beneficiaries in the position of taxpayer by law, but not in the position of simple taxpayer in fact, and the economic repercussion of the tax involved is irrelevant for verifying the existence of the constitutional benefit.”
This decision highlights the importance of the legal indonesia telegram data relationship between the tax authorities and the taxpayer, without considering the indirect economic effects of the tax on third parties.
Distinctions and Doubts
Despite the STF's understanding in Theme 342, other judicial decisions followed a different path. For example, in 2018, again under the reporting of judge Ângela Maria Catão, the TRF of the 1st Region reaffirmed:
“The immunity provided for in art. 150, VI, c, of the CF/88, in favor of social assistance institutions, covers the Import Tax and the Tax on Industrialized Products, which are levied on goods to be used in the provision of their specific services.”
In 2022, Judge Rosimayre Gonçalves, also from the TRF of the 1st Region, decided that, in the case of importing goods:
“The charitable social assistance entity is entitled to immunity from Import Tax, IPI, PIS/Cofins-import and ICMS in customs clearance.”
In a more recent decision, from January 2024, the TJ/SP, when dealing with a merchandise import operation, reaffirmed:
“The case law of this Court is firm in the sense that the immunity contained in art. 150, VI, c, of the CF/88 covers the ICMS levied on the import of goods used in the provision of services by social assistance entities.”
These decisions, although related to imports, use the same constitutional basis as art. 150, VI, c, also applicable to internal acquisitions.
For an immune entity to obtain judicial recognition of its IPI immunity, it is essential that it proves the essentiality of the inputs, medicines and equipment acquired for the provision of its services. An ordinary action is the appropriate means to seek such recognition, as it allows for the extensive production of evidence and the demonstration of compliance with legal requirements.
Furthermore, it is essential to present supporting documents, such as independent auditors' reports, balance sheets, financial statements and the CEBAS certificate. The documentation must be robust and supported by reports on the essentiality of the acquisitions for the provision of their main purpose, prepared by independent entities, to strengthen the legal arguments.
In parallel, in 2017, the STF ruled on Theme 342, which dealt with the ICMS borne by a charitable entity as a de facto taxpayer, similar to the case of the hospital in relation to the IPI. The STF decided that:
“Subjective tax immunity applies to its beneficiaries in the position of taxpayer by law, but not in the position of simple taxpayer in fact, and the economic repercussion of the tax involved is irrelevant for verifying the existence of the constitutional benefit.”
This decision highlights the importance of the legal indonesia telegram data relationship between the tax authorities and the taxpayer, without considering the indirect economic effects of the tax on third parties.
Distinctions and Doubts
Despite the STF's understanding in Theme 342, other judicial decisions followed a different path. For example, in 2018, again under the reporting of judge Ângela Maria Catão, the TRF of the 1st Region reaffirmed:
“The immunity provided for in art. 150, VI, c, of the CF/88, in favor of social assistance institutions, covers the Import Tax and the Tax on Industrialized Products, which are levied on goods to be used in the provision of their specific services.”
In 2022, Judge Rosimayre Gonçalves, also from the TRF of the 1st Region, decided that, in the case of importing goods:
“The charitable social assistance entity is entitled to immunity from Import Tax, IPI, PIS/Cofins-import and ICMS in customs clearance.”
In a more recent decision, from January 2024, the TJ/SP, when dealing with a merchandise import operation, reaffirmed:
“The case law of this Court is firm in the sense that the immunity contained in art. 150, VI, c, of the CF/88 covers the ICMS levied on the import of goods used in the provision of services by social assistance entities.”
These decisions, although related to imports, use the same constitutional basis as art. 150, VI, c, also applicable to internal acquisitions.
For an immune entity to obtain judicial recognition of its IPI immunity, it is essential that it proves the essentiality of the inputs, medicines and equipment acquired for the provision of its services. An ordinary action is the appropriate means to seek such recognition, as it allows for the extensive production of evidence and the demonstration of compliance with legal requirements.
Furthermore, it is essential to present supporting documents, such as independent auditors' reports, balance sheets, financial statements and the CEBAS certificate. The documentation must be robust and supported by reports on the essentiality of the acquisitions for the provision of their main purpose, prepared by independent entities, to strengthen the legal arguments.