Unconstitucionalities in the Quantitative Criterion for Incidence of IRPJ and CSLL on the Presumed Profit for Corporations Providing Services Related to Health

Abstract

This paper has as an objective to undermining the constitutionality of the article 29 of Federal Law n. 11.727/2008, which amended the item “a”, subsection III, paragraph 1, of article 15 of Federal Law n. 9,249/1995, which deals with the criteria to get reduction of the calculation basis of Income Tax for Legal Entity (IRPJ) and Social Contribution on Net Income (CSLL) for companies providing health services, that are opting for Presumed Income. The method used in this research was the hermeneutical empiric and had as an instrument of data collection the bibliographic research in books, jurisprudence and doctoral theses. This paper concluded that the article under review infringed: (a) the principle of tax isonomy, when establishing as a criteria the register like Limited Liability Company (LLC); and (b) the principle of legality, when establishing as a requirement the compliance with Anvisa rules, without any objective criteria (Anvisa is similar to the Food and Drug Administration on US).