There should be no incidence of ICMS on the importation of medical equipment, due to the absence of valid regulations of the Constitutional Amendment, in the following States of the Federation: São Paulo, Rio de Janeiro, Mato Grosso, Mato Grosso do Sul, Santa Catarina, Goiás, Ceará and Alagoas, in a certain period.
By appropriate judicial measure, clinics located in these States may:
- a) recover the ICMS paid in the last five years;
- b) definitively cancel ICMS installments;
- c) extinguish notices of infraction that are under judicial or administrative discussion;
- d) fail to pay ICMS on imports made within the 2015 fiscal year (depending on the State of importation).
- Cases should be assessed individually and casuistically.
Non-incidence of the social security contribution on indemnity installments paid to the employee, such as:
The) Holidays and their respective additional;
B) Indemnified prior notice;
w) Accident Assistance for the first fifteen days. It is feasible, eventually, to file a judicial measure to seek the restitution of what was paid in the last five years and the declaration of unenforceability for future funds.
Article 29 of Law No. 11,727/08, which amended article 15, paragraph 1, item III, item “a” of Law No. 9,249/95, taking effect from 01/01/2009 as follows: “Art. 15. The tax calculation basis, in each month, will be determined by applying the percentage of eight percent on the monthly gross revenue, observing the provisions of arts. 30 to 35 of Law No. 8.981, of January 20, 1995.
§ 1 In the following activities, the percentage referred to in this article will be: (...) III – thirty-two percent, for the activities of:
a) provision of services in general, except for hospital services and diagnostic and therapeutic assistance, clinical pathology, imaging, pathological anatomy and cytopathology, nuclear medicine and clinical analysis and pathologies, provided that the provider of these services is organized in the form of a business company and meets the standards of the National Health Surveillance Agency - Anvisa;"
Indeed, according to the new legal provision, medical clinics opting for the presumed profit regime will be able to calculate the IRPJ and CSLL with the application of the presumed profit percentages of, respectively, 8% and 12%, an operation that will result in the tax calculation bases on which the rates of 15% for the IRPJ and 9% for the CSLL should be applied, according to the simulation below:
| Gross Revenue | R$ 100,000.00 | ||||
| Previous Situation: | Status as of 01/01/2009: | ||||
| IRPJ | IRPJ | ||||
| Calculation basis(coefficient of 32%) | R$ 32,000.00 | Calculation basis(coefficient of 8%) | R$ 8,000.00 | ||
| tax due(rate 15%) | R$ 4,800.00 | tax due(rate 15%) | R$ 1,200.00 | ||
| CSLL | CSLL | ||||
| Calculation basis(coefficient of 32%) | R$ 32,000.00 | Calculation basis(coefficient of 12%) | R$ 12,000.00 | ||
| due contribution(rate 9%) | R$ 2,880.00 | due contribution(rate 9%) | R$ 1,080.00 | ||
| Total amount (IRPJ + CSLL) | R$ 7,680.00 | Total amount (IRPJ + CSLL) | R$ 2,280.00 | ||
However, to qualify for the benefit, the legal entity must provide one of the following services:
(i) aid to diagnosis and therapy;
(ii) clinical pathology;
(iii) imaging;
(iv) pathological anatomy and cytopathology;
(v) nuclear medicine;
(saw) analysis and clinical pathologies.
In addition, it should be organized in the form of business company, with the registration of its articles of incorporation at the Board of Trade, and meet the standards of the National Health Surveillance Agency.
Anvisa's norms referred to in Law No. 11,727/08 are consolidated in Resolution RDC 50, of February 21, 2002, which provides for the Technical Regulation for planning, programming, elaboration and evaluation of physical projects for health care establishments.
In Part II of the aforementioned rule, which deals with the Physical Functional Programming of Health Facilities, Anvisa clarifies that: “The physical-functional programming of health care establishments is based on an already prepared Health Care Plan, which determines the actions to be developed and the goals to be achieved, as well as the different operating technologies and the conformation of the physical health care networks, delimiting the list of duties of each health care establishment in the system as a whole.
These attributions, both in the public and private areas, are sets of specific activities and subactivities, which correspond to a synoptic description of the technical organization of work in health care.
The sets of attributions admit different (theoretical) compositions that are the typologies (functional models) of health care establishments. Therefore, each composition of attributions proposed will define its own typology to be implemented.
” The imaging activity is described in sub-item 4.2 of Assignment 4 – Provision of Diagnostic Support Services, namely: “4.2 – Imaginology:
4.2.1 – carry out the consultation and clinical examination of patients;
4.2.2 – prepare the patient;
4.2.3 - ensure the execution of pre-anesthetic procedures and carry out anesthetic procedures;
4.2.4 – carry out surgical hand washing;
4.2.5 – carry out diagnostic tests and therapeutic interventions.
a) through radiology through the results of fluoroscopic or radiographic studies;
b) through cardiovascular radiology, usually resorting to catheters and contrast injections.
Therapeutic procedures such as angioplasty, drainage and therapeutic embolizations are also performed;
c) through tomography - through the use of ionizing radiation;
d) through ultrasonography - through the results of ultrasonographic studies;
e) through magnetic resonance imaging - through a technique that uses magnetic fields;
f) through digestive and respiratory endoscopy;
g) by other means;
4.2.6 – preparing medical and nursing reports and registering the procedures performed;
4.2.7 – provide post-anesthetic and post-procedure care;
4.2.8 – ensure emergency care;
4.2.9 – perform image processing;
4.2.10 – interpret the images and issue a report on the tests performed;
4.2.11 – store and prepare plates, films and contrasts;
4.2.12 – ensure the protection and safety of patients and operators; It is
4.2.13 – ensure the processing of biological material collected in endoscopies.
” Further on, but still in Part II of Resolution RDC 50/02, ANVISA deals with the Dimensioning, Quantification and Building Installations of Environments of health establishments.
According to the Agency, “In this chapter, the spatial aspects strictly related to the various attributions and activities are addressed, based on an extensive list of environments suitable for Health Care Establishments, gathered in tables by groups of activities.
The tables presented below are not architectural programs of specific units, but rather tables containing the different environments for each activity described in chapter 2 – physical-functional organization.
Therefore, when preparing the architectural program of any EAS, it is necessary, before consulting the tables, to describe which activities will be carried out in that EAS and thus identify which environments are necessary to carry out these activities.”.
The specific tables for each health care establishment (EAS) appear in the text of Resolution RDC 50/02, whose content can be obtained through the website:<http://www.anvisa.gov.br/legis/resol/2002/50_02rdc.pdf.>
Furthermore, the benefit only applies to business companies.
Article 982 of the new Civil Code begins the delimitation of the business company's activity as follows: “a company is considered to be a company whose object is the exercise of activities of entrepreneurs subject to registration (art. 967); and, simple, the others”.
Article 966, also of the Civil Code, provides for the entrepreneur's own activity: “an entrepreneur is considered to be someone who professionally carries out an organized economic activity for the production or circulation of goods or services”.
The sole paragraph of this article makes the following caveat: “A person who exercises an intellectual profession of a scientific, literary or artistic nature is not considered to be an entrepreneur, even with the assistance of assistants or collaborators, unless the exercise of the profession is part of the company”.
The doctor's profession is of an intellectual nature, so that, in principle, a society of doctors conforms to the “simple” societal type.
It remains to be seen, therefore, whether the exercise of the profession in these cases constitutes an element of the company. According to the civilist doctrine, the exercise of the profession will constitute an element of the company when the professional “investing capital, forming a company, offering services through organized, technical and stable economic activity” (Diniz, Maria Helena. Annotated Civil Code. 9th ed. rev. and current. – São Paulo: Saraiva, 2003).
Despite the definitions contained in the new Civil Code and the clarifications found in the doctrine, there is no objective criterion (eg, having an “x” number of employees or earning “y” revenue) that classifies the legal entity as a simple company or business.
For this reason, considering the doctrinal concepts accepted by our courts, registration as a simple partnership is suitable for smaller clinics, which have little or no employees and in which services are provided by the partners themselves. An example of what is said are companies incorporated with the sole purpose of providing services – which is done by the partners themselves – to other legal entities, such as clinics or hospitals that have the structure of a business company and observe ANVISA rules. The business type should be adopted by clinics with more complex infrastructure, which rely on the help of collaborators, among them other physicians, in addition to the partners providing services on behalf of the society. Ideally, the clinic should have an establishment with equipment to carry out the tests, with an operating license from the Sanitary Surveillance. In this type of company, it is common for the partner to assume the role of entrepreneur, who is responsible for managing the clinic, leaving the exercise of the core activity to other contracted professionals.
Therefore, in order to comply with the legal provision contained in item 'a', item III, paragraph 1, article 15 of Law No.
It is worth mentioning that the simple registration of the Social Contract at the State Board of Trade as a business company is not enough for the clinic to fulfill the legal requirement, and the company must effectively have the above-mentioned business characteristics to be considered as such.
The levy of ISS on services provided by uniprofessional medical societies is governed by Decree No. 406/68, which must be respected by municipalities when legislating on the subject.
According to this discipline, to be entitled to differentiated taxation, the company must be uniprofessional, that is, it must have its corporate structure composed only of physicians who assume personal responsibility for the services provided, namely:
“Art. 9 (...) § 1 When it comes to the provision of services in the form of the taxpayer's own personal work, the tax will be calculated at fixed or variable rates, depending on the nature of the service or other relevant factors, in which the amount paid as remuneration for the work itself is not included.
(...) § 3 When the services referred to in items 1, 4, 8, 25, 52, 88, 89, 90, 91 and 92 of the attached list are provided by companies, these will be subject to tax in the form of § 1, calculated in relation to each qualified professional, partner, employee or not, who provides services on behalf of the company, although assuming personal responsibility, under the terms of the applicable law.”
Despite these being the only requirements contained in DL nº 406/68, some municipalities are restricting this benefit to simple companies, on the understanding that in business companies doctors would not assume personal responsibility for the services provided.
We understand, however, that the thesis does not hold because the personal responsibility of physicians is inherent to the profession itself, which is regulated by law, which imposes sanctions in case of ethical-professional infractions ranging from a simple warning to the revocation of the right to professional practice, as determined by Law nº 3.268/57.
In addition, as Professor HUGO DE BRITO MACHADO (1) teaches, the essence of the professional society is not in the way in which it was constituted, but in the effective nature of the services provided and in the private attributions of each profession provided for in the federal law of the respective category, whose technical responsibility cannot be delegated and is exclusive to the qualified professional who signs the technical document.
The limited liability of the partners is restricted to acts of management of the company, which would eventually reach some unsecured creditor, but cannot be enforced against the Public Treasury and the bodies that regulate the profession, in this case, the Regional Council of Medicine. However, the Judiciary has been inclined to apply the benefit only to simple companies, as judged below:
“TAX – CIVIL SOCIETIES – LABORATORY – ISS – LIMITED LIABILITY COMPANY – BUSINESS PURPOSE – NON-IMPACT OF ARTICLE 9, § 3, OF DECREE-LAW No. 406/68. 1.
The STJ established the understanding according to which uniprofessional civil societies, whose purpose is to provide a specialized service, with personal responsibility and without a business character, are entitled to privileged treatment of the ISS, which is not the case in the case file. two.
Companies limited by shares of responsibility undeniably have a business character, which subtracts them from the benefit contained in art. 9, § 3, of DL n. 406/68. Improved regimental grievance.” (AgRg in REsp 1031511/ES, Reporting Minister HUMBERTO MARTINS, SECOND CLASS, judged on 09/09/2008, DJe 10/09/2008) “TAX. SPECIAL RESOURCE. SAFETY ORDER. ISS. LIMITED SOCIETY. NO BUSINESS CHARACTER. PRIVILEGED TAX TREATMENT. IMPOSSIBILITY.
1. Pursuant to art. 9, § 3, of DL 406/68, single-professional civil societies, whose object is the provision of specialized services, with personal responsibility and without a business nature, are entitled to privileged treatment at the ISS.
2. “Under the terms of art. 1.052 of the CC/2002, 'in the limited liability company, the liability of each partner is restricted to the value of their shares, but all are jointly and severally liable for the payment of the share capital'. Thus, in this type of society, the partner's liability 'is limited to the strength of the share capital' (Rubens Requião). In this context, there is no mention of unlimited liability of the partners, nor of the absence of a business character” (AgRg at Ag 960733/RJ, Minister Denise Arruda, 1st T., DJ of 08.05.2008).
3. Special appeal granted.” (Resp 1057668/RS, Reporting Minister TEORI ALBINO ZAVASCKI, FIRST PANEL, judged on 08/26/2008, DJe 09/04/2008) Notwithstanding the above-mentioned majority understanding, there are judgments that corroborate what is now defended: “DIVERGENCE EMBARGOES. UNIPROFESSIONAL SOCIETY OF ADVOGADOS. ISS. COLLECTION BASED ON AN ANNUAL FIXED AMOUNT. DIFFERENTIATED TAX TREATMENT PROVIDED FOR IN ART. 9, §§ 1 and 3, OF DECREE-LAW No. 406/68. INAPPLICABILITY OF ARTICLE 166 OF THE NATIONAL TAX CODE. NON-PROVIDED DIFFERENT EMPLOYMENTS. (…) two.
The uniprofessional society of civil lawyers, whatever the content of its articles of incorporation, enjoys the differentiated tax treatment provided for in art. 9, §§ 1 and 3, of Decree-Law no. 406/68 not paying the ISS based on its gross billing, but on the annual fixed amount calculated according to the number of professionals that integrate it, so that the charge does not pass on to third parties to demand compliance with the provisions of article 166 of the National Tax Code in actions of repetition of undue payment of the aforementioned tax.
3. Embargoes of divergence not provided.” (EREsp 724.684/RJ, Reporting Minister JOSÉ DELGADO, FIRST SECTION, judged on 05.28.2008, DJ 06.16.2008 p. 1) Therefore, due to this personal and unlimited technical responsibility of the professionals that make up professional societies, especially doctors, we understand that clinics that have such benefit illegally restricted by the Municipalities should seek to recover it in court.