STUDIES ON IMMUNITY TAX Hosanna Maria de Paiva Cazuza OAB-2435-CE and conclusive

Course of Law Office Trainee UFC Alberto Bezerra Advocacy & Consulting S / C *
CONTENTS: 1 Definitions and Concepts Básicas.1.1Distinção between immunity and e
xemption. 2. The constitutional text and the kinds of immunities. 2.1 The immuni
ty recíproca.2.2 Immunity of temples. 2.3 Immunity property, income or services
of political parties and their immunity from fundações.2.4 worker unions 2.5 Imm
unity of educational institutions for social assistance, not for profit. 2.6 Imm
unity of books, newspapers, periodicals and paper for your impressão.3. Conclusã
o.4. Bibliography 1 Defining and Understanding Immunity, Institute as enshrined
constitutionally, confines itself to a limitation on the taxing power. Is to ins
titute a constitutional nature, according to some authors, the very limited taxi
ng power. You are, she hosted the diverse field of the exemption, since that is
not achieved by any possibility of occurrence. In other words, immunity is outsi
de the realm of hypothesis or incidence of such taxation. Its structure, as said
, is the constitutional provision. Art. 150, item VI of the Constitution of 1988
provides for the tax immunity, denying the Union, the States, the Federal Distr
ict and Municipalities to institute taxes on various entities, services or incom
e from each other. With reference to the phrase highlighted above, it is worth n
oting the latest opinion of prof. Hugo de Brito Machado, who teaches a comprehen
sive immunity, but they achieved only taxes, but the other taxes. According to P
rof. Ruy Barbosa Nogueira, immunities listed in subparagraphs a, b, c and d of s
ection VI of Art. 150 of the Constitution of 1988, provided the provisions of pa
ragraphs and their art. 14 CTN, include situations or entities that, by nature n
atures and purposes, are constitutionally recognized as no "economic capacity" o
r to pay .. In the words of Amilcar Falcão, immunity is "a special form of quali
fied or non-impact, for cancellation, the Constitution, imposing the jurisdictio
n or power to tax, when to configure certain conditions, situations or circumsta
nces provided for by statute supreme. Schematically, power would express the sam
e idea as follows: the Constitution does, originally, the distribution of power
or imposing the power to tax, to make the award that power, conditioning it, or
rather, the clause stating the Where it can not be exercised. Immunity is thus a
form of non-impact by the forceful suppression of jurisdiction to tax certain e
vents, situations or people, by constitutional provision. " Some authors also de
fine the institution of immunity as a qualified non-impact, since the concept is
not generally known incidence would not affect a simple, namely, the situation
in which the fact would not fit in the case of incidence (law) and, therefore, w
ould not suffer any imposition of tax. 1.1 Distinction between immunity and exem
ption Given the definition of the institute, it is needful to emphasize the dist
inction between this and the exemption. As already said, the immunity derives fr
om a constitutional provision, therefore, superior character, it can not enter a
ny rule imposing a stamp-tax. One can not therefore be confused nature of this i
nstitute with the eminently constitutional exemption which, in turn, always occu
rs through a law to specify, outlining all of the conditions for granting it, ju
st having character infra. Moreover, the exemption is an exception to the rule o
f taxation in a deleted portion of the scope of possibility of occurrence. 2 The
constitutional text and the kinds of immunities
The 1988 Federal Constitution lists all entities and situations that are benefit
ed by the Institute of immunity, but let's see, verbatim: "Section 150. Notwiths
tanding any other guarantees ensured to the taxpayer, it is forbidden for the Un
ion, the states, the District Federal and Municipalities: (... omissis) VI - ins
titute taxes on:
a) property, income or services from each other, b) temples of any cult, c) prop
erty, income or services of political parties, including their foundations, of w
orker unions, institutions of education and social assistance, and profit, met t
he requirements of law; d) books, newspapers, periodicals and paper intended for
printing. § 1 The prohibition of section III, b, does not apply to taxes provid
ed for in Arts. 153 I, II, IV and V and 154, II.
§ 2 The prohibition of section VI, a, is extended to municipalities and foundati
ons instituted and maintained by the Government in relation to property, income
and services related to its essential purposes or arising therefrom. § 3 s prohi
bitions contained in Item VI, and the preceding paragraph shall not apply to pro
perty, income and services, connected with the exploitation of economic activiti
es governed by the rules applicable to private enterprises, or where there is co
nsideration or payment of prices or by user charges or release the prospective b
uyer's obligation to pay tax on the property.
2.1 The reciprocal immunity (art. 150, VI, "a") Due to the very essence of our f
ederal system, the Federal Constitution entered so expressed, the principle of r
eciprocal immunity, thereby preventing that people in public law ( Federal, Stat
e, Federal District and Municipalities) institute imposed on each other. In this
sense, there is the understanding of the Supreme Court, verbis: "Summary CONSTI
TUTIONAL. TAX. IMMUNITY RECIPROCAL. LOCAL COUNCIL STATE. IPTU. CF, ART. 150, VI,
a, § 2. I - Immunity interplay of political entities - Article 150, VI, - exten
ds to municipalities in relation to property, income and services connected to t
heir essential purposes or arising therefrom. CF., Article 150, § 2. II - In thi
s case, tax - property tax - levied on building occupied by the municipality. Yo
u are therefore covered by the tax immunity. III - Extraordinary Appeal not know
n. " (STF, Extraordinary Appeal No 203 839, DJ 05.02.1997, p. 16 574) (emphasis
added) As the understanding susomencionado, it is clear that immunity only appli
es to reciprocal political entities only those situations where the assets, inco
me or services are bound to their essential purpose entities. Any other situatio
ns not related to its main purpose will be unable to enforce the institute of im
munity. There, as a result of this aspect, exceptions to the principle of recipr
ocal immunity contained in § 3 of art. 150 Letter from Major. According to this
device, the immunity does not apply to property, income and services related to
the operation of economic activities governed by the rules applicable to private
enterprises. Obviously, here, the law equates, in this case those of the Public
Private Law carrying on the same farm economic activity, since
§ 4 s prohibitions contained in Item VI, paragraphs b and c encompass only the p
roperty, income and services related to the essential purposes of the entities m
entioned therein "
are governed by rules of private law and perform gainful activity, different fro
m the common state activity. It would be a privilege to grant immunity when the
public if they use the rules applicable to private companies. Also, do not apply
the principle of reciprocal immunity when public entities to develop activities
in which there is consideration or payment of rates or fees for users. In this
case, likewise, would be acknowledging an activity of economic nature. Regarding
the subject, see the controversy of a narrated by Prof. Ruy Barbosa Nogueira: "
The director of the Federal Revenue Department issued the Normative Instruction
No. 62, April 19, 1990, intending to change the concepts expressed in the Consti
tution in force, through these unbelievable words:" 3. Fall within the concept o
f financial investments for the purpose of the tax on financial operations ...
b) the voluntary deposits to guarantee the deposits in court proceedings and, wh
en your withdrawal if you give in favor of the depositor. 3.1 The incidence of t
ax reaches any independent operation of the quality of the beneficiary or the le
gal form of its constitution "(italics transcription). As a result, then, that e
ven an official Department of Revenue fell in April 24, 1990 another act, called
"note", endorsed by Angenor Manzano, with the following title: "Effect of IOF o
n financial transactions of legal persons of public law." conclusion to the foll
owing terms: "The main contention of the federated entities is that the fees lev
ied on the assets of these entities and that therefore they would be protected b
y tax immunity. The position of the IRS, however, is that the tax levied on the
financial-complication, not on equity, by the very nature of the tax, ie tax on
financial transactions. "
Based on the following case,€extracts that the matter is quite controversial whe
n it happens you think the situation mentioned in § 2 of art. 150, since their o
rganizations to seek immunity to prove that the tax will take place on their her
itage, and, secondly, attempts to demonstrate that the IRS will focus on anythin
g else, in the case mentioned on financial applications, to prevent which are ho
used by the Constitutional consider immune. Other jurisprudential understandings
: "Summary: CONSTITUTIONAL. TAX. OIF.IMPOSTO TRANSACTIONS ON CREDIT, INSURANCE A
ND EXCHANGE OPERATIONS ON AND ON MARKETABLE SECURITIES. Law 8088 of 10/31/1990.
TAX IMMUNITY. MUNICIPALITY. CF Art 150, V, "a". I - IOF: no impact on the financ
ial assets of the municipalities, in view of the tax immunity of these (cf., Art
icle 150, VI, "a"). II - Extraordinary Appeal not known. " (STF, Extraordinary A
ppeal No. 206 014, Rep. Carlos Velloso, Second Class, DJ of 11.04.1997, p. 02 49
3) "Summary: CONSTITUTIONAL LAW AND TAX. Direct action of unconstitutionality. I
PMF. PROVISIONAL TAX ON THE DRIVE OR TRANSMISSION VALUES AND CREDIT FINANCIAL AN
D RIGHTS OF NATURE - IPMF (Constitutional Amendment No. 03, 18/03/1993 AND COMPL
EMENTARY LAW N º 77, DE 7/13/1993). RECIPROCAL IMMUNITY (Art. 150, item VI, "The
"THE FEDERAL CONSTITUTION.) having been declared by the Plenary of the Supreme
Court, in the records of ADIN No. 939, on a date, 15/05/1993, the unconstitution
ality of the terms" art. 150 III, 'b' and VI, or "contained in paragraph 2 of ar
t. 2 of Constitutional Amendment No. 03, 18/03/1993, as well as
Additional provision in the law No. 77 of 07.13.1993, for having failed to exclu
de the impact of IPMF, legal persons of public law, is hampered by lack of objec
t, this direct action of unconstitutionality, which aims to declaration of uncon
stitutionality of such terms "art. ... 150 VI," a ", contained in the standard f
or infringement of the principle of reciprocal immunity between the Union, State
s, Federal District and Municipalities, which prohibits the imposition taxes on
property, income or services from each other. Action declared impaired by unanim
ous vote. "(STF, ADIN No. 926, Min Rel Sydney Sanches, Full Court, DJ 05.06.1994
, p. 10 485)" Summary: Tax. ICM. Share of contribution. reciprocal tax immunity.
constitutional impediment (art. 150, VI, "a", CF). Precedents of the STJ and ST
F. reestablished the validity of Instruction No. 205 of May 12, 1961 , the forme
r Superintendency of Money and Credit, by Decree-Law No. 2.295/86, which in art.
28 provides the share of contribution to supply resources for the Fund for the
Coffee Economy Defense, that value could not integrate the calculation basis for
incidence of MCI, compared with the Constitutional principle of reciprocal tax
immunity. In the interpretation of art. 2, paragraph 8, of Decree-Law No 406/68,
above, then, to Decree-Law 2295/86, the expression "net amount billed "calculat
ion basis of the ICM, will be interpreted according to the concepts of Business
Law and Accounting Sciences, that is, excluding expenses. I know and I dismissed
the appeal." (STJ, Special Appeal No. 4311, DJ 19.8.1991, p. 10,983) "menu: Con
stitutional. Tax. RECIPROCAL IMMUNITY TRIBUTÁRIA. LOCAL COUNCIL statewide. IPTU.
CF., Article 150, VI, a, § 2. I - The reciprocal tax immunity of political enti
ties - Article 150, VI, - extends to municipalities in relation to property, inc
ome and services connected to their essential purposes or arising therefrom. CF.
, Art.150, § 2. II - In case the tax - property tax - levied on building occupie
d by the municipality. It is therefore covered by the tax immunity. III-RE not k
nown. "(STF, the extraordinary appeal No. 203 839, DJ 02.05.1997, p.16574).
2.2 Immunity of temples Art. 5, VI CF/88 enshrines the guarantee of religious fr
eedom of citizens, regardless of how manifestation occurs and dissemination. Thi
s prerogative given to the temples can find your reason starting from the assump
tion that religious activities does not motivate profit. Includes a way to prote
ct the overriding interests of the churches and not misrepresent them to the iss
ues of economic life. The legislature sought to in paragraph b of section VI of
Art. 150, to prevent religious activities suffer any fiscal constraint. Aliomar
Whaler understands that the word "temple, the constitutional provision, not only
covers only the materiality of the building, but understand his culture. It is
also important not to confuse temples, places of worship, with rectories, reside
nce of priests, of pastors, rabbis, priests Muslims€among others of the genre. T
hese, in any way, have the benefit of immunity. The temple building as sacred, i
s immune as their incomes (of ceremonies, Masses of baptisms, marriages, etc.),
since reapplied the cult itself. If the income earned through religious activiti
es are intended for other purposes, within or outside the country, will be taxab
le. Mister is made here to define, in the words of Hahnemann Min Guimarães, what
comes to worship, "is the set of religious practices, for the improvement of hu
man feelings. It is the outward manifestation of belief. The rite, this part the
liturgy with which men worship the God and the Saints, it is absolutely free, t
he republican regime. There is as far as determining the state of religion, what
ever they may be, they do not offend public morals. " Still, according to commen
ts by J. Cretella Jr., the building of the temple does not pay property tax, nei
ther territorial nor inter vivos, in case of alienation. However, the rates
and contributions for improvement, the temples are just as taxable as other prop
erty (water and sewer rates, contribution to the improvement of street paving, r
ates of work). With reference to rents stemmed from convents and other religious
institutions, although applied in the services, are taxable, since they were ea
rned outside the temples. Aliomar Whaler, referring to the transport vehicles us
ed for catechesis and for the worship services, or for services to care for sick
and dying, he teaches that they are included in the term "temple" is thus not t
axable. It is worth noting that the Brazilian system does not allow religion or
grant by the state cult, and therefore, all the temples of worship could claim i
mmunity. 2.3 Immunity property, income or services of political parties and thei
r foundations According to art. 134 of Law No. 1164 of July 24, 1950, political
parties are considered legal entities under public law entities to which the sta
te allocates public persona. The very importance of which are, political parties
are immune to taxes levied on their property, their goods and services they per
form, provided that compliance with the requirements of law. As well emphasizes
Prof. Denise Lucena: "Political parties currently represent one of the most impo
rtant manifestation of democracy. In multiparty system are advocated various ide
ological currents, with all acting according to their size into the political fo
rce. And it is precisely this ideological antagonism which drives the political
and social structure. "
The tax immunity of political parties stems from the indispensability of their a
utonomy, to be able to prevent any form of taxation will curb their freedom of e
xpression that characterize them. Mister are immune to stress that the goods or
the assets of political parties. Everything economically assessable, such as the
building (s) where work (s) the party, the lands are not taxable. Sacha Calmon
Navarro, however, advocates a broad interpretation of the immunity conferred on
political parties, since it considers all the buildings immune, since even those
affected by profit, have reversed their recipes for parties In summary, teaches
J. Cretella Jr.: "They are immune to taxes: a) the buildings belonging to polit
ical parties, even to serve as residences for the party bosses or employees, b)
the houses belonging to the party, even to the heads or leased to employees c) l
and belonging to the party, even to serve as parking and rental yield, d) the se
rvices performed by the party, such as advertising, correspondence, radio, e) re
nts produced by the real estate and land leased to third parties. They pay, howe
ver , imposed on private residences of the heads and employees of the party (pro
perty tax and territorial urban), water services and sewage (fee) stamps corresp
ondence and telegrams (fee), phone calls, asphalting and paving the way borders,
side or Surrounding (betterment or, as is said today, rate of work).
2.4 Immunity of worker unions The unions have as their primary activity to impro
ve working conditions by exercising, above all, labor relations, sine, also back
ed by the 1988 Federal Constitution, in its art. 8. Its objects consist from the
rights and interests to the collective agreement negotiations and collective ba
rgaining work, thus contributing to the changes in employment relationships,€in
social and economic life of the citizen worker. What defies understanding the in
terpreters in the immunity of the unions referred to the fact that its applicati
on is limited to unions of employees, while for employers it is not given this b
enefit.
Prof. Hugo de Brito Machado believes that the institute of immunity should also
involve the unions in general, not just the employees. The immunity which refers
to "c" in Item VI of Art. 150 CF/88 of the property, income and services relate
d to the essential activities of unions, without forgetting the basic activities
performed as day care, for example, which should be interpreted extensively. 2.
5 Immunity of educational institutions for social assistance, nonprofit educatio
n as basic principle for education and development of culture of a people is emb
odied in its legal apparatus Fundamentalis Lex, in his art. 205, caput. Aliomar
Whaler defines what is to be educational entity, "Establishment of education is
not just a strictly didactic, but every one that takes education and culture in
general, as the laboratory, research center, museum, workshop painting and sculp
ture, gym sports, academies of letters, arts and sciences, with no prospect of p
rofit, though, for its manifestation, sag burdensomely copyrights, patents and d
iscoveries, etc. ".
In consultation made to Prof. Ruy Barbosa Nogueira on the immunity of entities a
nd SESC SENAC, he argues that both are backed so broad and unrestricted by point
c, item VI of art. 150, CF/88. Characterized, first, as an entity of social ass
istance, nonprofit, created by the National Confederation of Commerce, in order
to plan execute, directly or indirectly, measures to contribute to the welfare a
nd improvement of life for the families of business people. The National Service
of Commercial Apprenticeship (SENAC), in turn, includes in its design, a nonpro
fit educational organization, also created by the National Confederation of Comm
erce, in order to organize and administer schools learning trade and specializat
ion courses in the trade area. Understanding jurisprudence on the subject: "Summ
ary: CONSTITUTIONAL. TAX. ICMS. TAX IMMUNITY. INSTITUTION OF EDUCATION NONPROFIT
. CF, Article 150, VI," c ". I - No claim for the purpose of being restricted to
application of immunity, classification criteria adopted by the tax rules under
the Constitution, because it is not appropriate to distinguish between goods an
d assets, as this constitutes the set of those. What meets inquired, therefore,
is whether the goods acquired in the domestic market or external part of the pat
rimony of the entity covered by immunity. II - Supreme Court precedents. III - R
E not known. "(STF, Extraordinary Appeal No. 193 969, DJ 11.08.1996, p. 43 221)"
Summary: TAX. ISS. IMMUNITY TAX, SOCIAL ASSISTANCE AUTHORITY. SESC. COLLECTION
OF TICKETS. OFFERS CULTURAL. PREVIOUS. egregious This Court has pacified the und
erstanding that it is forbidden to require municipalities SI of social entities
charge when tickets for cultural activities to promote. - Special feature lackin
g. (ST, Special Appeal No. 23 016, DJ 15/8/1994, p. 20 298) Ives Gandra Martins,
opinion on the authority of the Holy House of Mercy der St. Paul, believes that
it is supported by the device Constitutional relevant to immunity, because it c
omprises a society benefit non-profit, it intended to exercise charity, shelteri
ng and aiding the sick, elderly, disabled and helpless, as set forth in its Stat
ute, in its art. 1. You she, hosted by the Institute of immunity and could not,
therefore, the municipality, the property tax levy introduced by the Secretary o
f Finance of the City. 2.6 Immunity of books, newspapers, periodicals and paper
for its printing. Here, the institute immunity must be understood in its sense f
inalistic, since it is critical that the legislature did not consider any of the
means needed tax `the production of objects immune.
Thus, books, newspapers, periodicals and paper for each of these products are pr
otected by the immunity conferred on the "d", item VI, art. CF/88 of 150. Let us
study the case law of the matter: "CONSTITUTIONAL. TAX. JOURNAL. TAX EXEMPTION.
CF. Art 150., VI, d.
I - S Supreme Court ruled that only the materials related paper (photography, te
lephoto, photographic film, unexposed, for monochrome images,€photo paper for la
ser typesetting) that are covered by the tax immunity of art. 150, VI, FC.
II - Supreme Court precedents: RREE 190 761 174 476-SP-SP, Minister F. Rezek for
Judgement; RREE 203 859 204 234-RS-Spe, Minister M. Judgement for Correia, plen
ary, 11.12.1996. Vote loser Min C. Velloso, who understood the applicable tax im
munity to a greater extent. RE III-equipped and well known. (STF, 206 127 Extrao
rdinary Appeal, DJ 08.01.1997, p. 33 490)
The above jurisprudential understanding wants to demonstrate the kinds of materi
als that are covered by the institute of immunity, so that we can have an instru
ctive character placement to investors of the tax rule. This time, the cases fal
l into this matter will be promptly recognized as immune situations under judici
al review and more dominant. 3 Conclusion Given the object of study here present
ed, it appears that the matter is quite controversial both in doctrine and in ju
risprudence, since it deals with too many concepts of classes of Constitutional
Law, Tax and Administration, and it also has its influence within economic and s
ocial development. The Institute of immunity sets a legal framework of great rel
evance to the entities and situations which it housed, so superior, since it is
constitutionally guaranteed. However, despite the importance of the subject and
the growing range of jurisprudential positions also fosters many questions and d
iscussions in academic circles. Given the controversies regarding the matter, on
ly further study and too specific would be an effective explanatory. In this mon
ograph, it had the goal of making a brief study on the main aspects of the matte
r. In other works, we intend to deal with points that have been lost as a result
of the short time gap to research in greater depth. 4 Bibliography Carrazza, Ro
que Antonio. "Constitutional Tax Law Course." 5th edition, São Paulo, Malheiros,
1993. CARVALHO, Paulo de Barros. "Tax Law Course," 9th ed. São Paulo: Saraiva,
1997. Cretella JR., Joseph "Comments to the Constitution of 1998", 2nd ed., Rio
de Janeiro: Forense Universitária, 1993. LEGAL INFORMATION: Decisions of the Sup
erior Courts, 1997. MACHADO, Hugo de Brito. "Tax Law Course." 13th edition, São
Paulo, Malheiros, 1998. MARTINS, Ives Gandra. "Tax System in the 1988 Constituti
on", 4th ed. São Paulo: Saraiva, 1992. ___________________. "The tax immunity of
the Santa Casa de Misericordia de Sao Paulo - Complementary Law does not impose
onerous conditions, beneficiaries of the entities it appear" in Journal of Tax
Law No. 17, p. 1 / 13. NOGUEIRA, Ruy Barbosa. "Immunities: against taxes in the
previous Constitution and its more complete discipline in the 1988 Constitution,
2nd edition, São Paulo: Saraiva, 1992. OLIVEIRA, Juarez de. "Constitution of th
e Federative Republic of Brazil," 11th edition, São Paulo: Saraiva, 1995. ______
______________. "National Tax Code", 3rd edition, São Paulo: Saraiva, 1997. PAES
, P. R. Tavares. Comments to the National Tax Code ", 4th edition, São Paulo, RT
, 1995.
RODRIGUES, Denise Lucena. "The immunity as limiting the jurisdiction imposing,"
Sao Paulo: Malheiros, 1995.