Linked assistance and charitable organizations can open a hole of up to R$50 billion in the revenue of the Union, states and municipalities.
Experts in the tax area believe that the change should be questioned in the (Supreme Federal Court) if it is found that the measure represents favoritism from the State that goes beyond the protection of the functioning of these entities provided for in .
Another problem raised is the impact on the rest of society. The exemption involves taxes and contributions on consumption, which begin to change in 2027 due to the .
Under the rules of the new system, any tax benefit must be compensated by other taxpayers. In practice, it is possible to say that the church will pay less taxes, but its faithful are among those who will have to make the difference.
This Thursday (11), the Ministries of Finance and Planning and Budget stated that the expansion of tax immunity for religious temples has only federal revenue per year.
In an interview with UOL this week, Minister Dario Durigan (Finance) also stated that the measure could increase the tax rate created by the reform by one percentage point. In this case, the account also includes the impact on states and municipalities.
The minister did not present details of the calculation, but each percentage point is equivalent, in the case of the new taxes, to a revenue of close to R$50 billion divided between all spheres of government — more than half of this amount is allocated to the governors’ funds.
At the end of May, PEC (Proposed Amendment to the Constitution) 5/2023 was approved, which expands tax immunity for religious entities. The project, authored by deputy Marcelo Crivella (Republicanos-RJ), still needs to be analyzed by the , before being sent for sanction or veto by the Presidency of the Republic.
The text extends immunity, currently applied basically to income and assets, to acquisitions of goods and services carried out by these institutions. As a result, they would no longer pay taxes on their consumption.
During the vote in the Chamber, the project’s rapporteur gave as an example the acquisition of a microphone, an airplane or a helicopter for a church, which would be exempt from taxes.
Deputies approved a version of the text that extends this benefit to a series of other activities, in a generic way, including daycare centers, therapeutic communities, seminars, convents, monasteries, institutional care services, assistance activities and other non-profit activities.
During the vote, parliamentarians warned of the risk of fraud or abuse, given the ease of opening a church.
Comsefaz, a committee that brings together state finance secretaries, says that the expansion of immunity can generate permanent effects on the federal balance and increase the operational complexity of tax administration, especially given the need for regulation, qualification of beneficiary entities and the eventual creation of tax refund or relief mechanisms.
Lawyer Daniel Biagini Brazão states that the loss of revenue does not make the PEC unconstitutional in itself, but that there are grounds to question the constitutionality of the proposal.
“The central point is to know whether this new exemption is necessary and proportional to the protection of religious freedom or whether it exceeds this limit and begins to represent an excessively broad economic favoritism”, he states. “The State cannot hinder the functioning of churches, but it cannot subsidize them either.”
Natasha Giffoni Ferreira, partner at Volk & Giffoni Ferreira Advogados, states that the proposal involves the expansion of an immunity already provided for in the Constitution, “which in theory should rule out discussions”, but says that the text approved in the Chamber “brings subjective elements that will certainly have to be resolved in the Judiciary”.
Gustavo de Toledo Degelo, partner at Briganti Advogados, says that the proposal could generate debates related to fiscal responsibility, the need to estimate revenue waivers and the effects on the financing of State activities. “It is important to note that the granting of benefits in consumption taxes tends to impact the standard rate applicable to other taxpayers.”
Carlos Eduardo Navarro, professor at FGV’s São Paulo Law School, says he does not see unconstitutionality, but says that the proposal can be criticized for tax issues and impacts on other taxpayers. “If these entities stop contributing when purchasing goods and services, this will generate an increase in taxation for the rest of society.”
Among the taxes that will no longer be paid are the federal PIS/Cofins contributions, which will be replaced from 2027 by the CBS (Contribution on Goods and Services), with a rate estimated at around 9%.
The expansion also affects the collection of state ICMS and ISS from municipalities. The two taxes will begin to be phased out in 2029 and will give rise to the IBS (Goods and Services Tax) until 2033, with the rate to be calculated during this transition.
Main tax benefits of religious entities
Current:
– immunity from taxes on wealth, income and services related to essential purposes
– IPTU immunity on properties used for religious activities;
– IPVA immunity on vehicles linked to essential purposes;
– immunity of ITBI and ITCMD in the transfer of assets in certain cases;
– protection of revenues and income intended for essential activities;
– benefits to linked charities and assistance entities
Proposal:
– immunity on all purchases of goods and services
– linked assistance and charitable organizations would also benefit
Source: Gustavo de Toledo Degelo/Briganti Advogados
