Law No. 12101 Of November 27, 2009

Original Language Title: Lei nº 12.101, de 27 de Novembro de 2009

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LEI No. 12,101 OF November 27, 2009.

Disposes on the certification of entities benefit of social assistance ; regulates the procedures for exemption from contributions to social security ; it amends the Law No 8,742 of December 7, 1993 ; repeal devices of the Laws in the 8,212, July 24, 1991, 9,429, December 26 from 1996, 9,732, December 11, 1998, 10,684, May 30, 2003, and the Provisional Measure no 2.187-13, of August 24, 2001 ; and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC I do know that the National Congress decrees and I sanction it following Law:

CHAPTER I

PRELIMINARY PROVISIONS

Art. 1st The certification of social welfare benefits and the exemption of contributions to social security will be awarded to legal persons under private law, non-profit, recognized as social welfare benefit entities with the purpose of providing services in the areas of assistance social, health or education, and which meet the provisions of this Act.

Single Paragraph. (VETADO)

Art. 2nd The entities that it treats art. First they should obey the principle of universality of care, being vetoed to direct their activities exclusively to their associates or to the professional category.

CHAPTER II

DA CERTIFICATION

Art. 3rd The certification or its renewal will be granted to the benefit entity demonstrating, in the fiscal year prior to that of the application, observed the minimum period of 12 (twelve) months of constitution of the entity, compliance with the provisions of Sections I, II, III and IV of this Chapter, in accordance with the respective areas of acting, and comply, cumulatively, the following requirements:

I-be constituted as a legal person in the terms of the art caput. 1o; and

II-provide, in its constitutive acts, in the event of dissolution or extinction, the destination of the eventual remaining heritage the non-profit entity congenial or public entities.

Single Paragraph. The minimum period of fulfilment of the requirements for this article may be reduced if the entity is a service provider by means of congenial or instrument congenial with the Single Health System-SUS or with the Single System of Social assistance-SUAS, in case of local need attested by the manager of the respective system.

Section I

From Health

Art. 4th To be considered beneficial and to do jus to certification, the health entity should, under the regulation:

I-substantiate compliance with the targets set forth in convenon or congenial instrument concluded with the local SUS manager ;

II-offer the provision of its services to SUS in the minimum percent of 60% (sixty per hundred) ;

III-certify, annually, the provision of the services of which it treats inciso II, based on the somatorial of the internations performed and of the ambulatory attendances provided.

§ 1st The minimum percentage service that treats the caput can be individualized by establishment or the set of health establishments of the legal person, provided that it does not cover another entity with a legal personality of its own that is by it maintained.

§ 2nd For the purposes of the provisions of § 1st, in the set of health establishments of the legal person, can be incorporated that bound by contract strength in the form of the regulation.

Art. 5th The health authority should still inform the Ministry of Health, in the form by it established:

I-the entirety of internations and ambulatory attention performed for patients no users of SUS ;

II-the entirety of internations and ambulatory attention performed for the patients users of SUS ; and

III-the changes regarding records in the National Cadastro of Health Establishments- CNES.

Art. 6th The health entity providing services exclusively in the ambulatory area should observe the provisions in the incisos I and II of the art. 4th.

Art. 7th When the availability of population's assistive coverage by the public network of particular area is insufficient, SUS managers should observe, for the hiring of private services, the preference for participation of the health and not-for-profit entities.

Art. 8th In the impossibility of compliance with the minimum percent to which the inciso II of the art. 4th, on the grounds of the lack of demand, stated by the local manager of SUS, or there is no hiring of the entity's health services, should she substantiate the application of percent of its gross revenue in free health care of the following form:

I-20% (twenty percent), if the percent of SUS service is less than 30% percent (thirty per cent per cent) hundred) ;

II-10% (ten per cent), if the percent of SUS service is equal to or greater than 30 (thirty) and less than 50% (fifty per cent) ; or

III-5% (five percent), if the percent of SUS fulfillment is equal to or higher than 50% (fifty percent) or if you complete the quantitative of hospital internations and ambulatory attention, with free attention duly informed in accordance with the provisions of the art. 5th, not funded by SUS or by any other source.

Single Paragraph. (VETADO)

Art. 9th (VETADO)

Art. 10. Under no circumstances will it be admitted as application in free of charge the eventual difference between the values paid by the SUS and the prices practiced by the entity or the market.

Art. 11. The recognized health entity excellence can alternatively to comply with the requirement laid down in art. 4th, undertake projects of support for the institutional development of SUS, celebrating adjustment with the Union, through the Ministry of Health, in the following areas of acting:

I-studies of evaluation and incorporation of technologies ;

II-capacity-building of human resources ;

III-surveys of public interest in health ; or

IV-development of techniques and operation of management in health services.

§ 1st The Ministry of Health will set out the essential technical requirements for the recogni excellence regarding each of the areas of acting provided for in this article.

§ 2nd The resource expended by the health entity in the support project may not be lower than value of the exemption from social contributions enjoyed.

§ 3rd The support project will be approved by the Ministry of Health, heard the instances of the SUS, second procedure defined in act of the Minister of State.

§ 4th Health entities which come to benefit from the condition provided for in this article may complement the activities concerning support projects with the provision of outpatient and hospital services to unpaid SUS, upon pact with the local SUS manager, observed the following conditions:

I-supplementation will not be able to exceed 30% (thirty per cent) of the value enjoyed with the exemption of social contributions ;

II-the health entity is expected to present to the local manager of the SUS work plan with forecast of service and cost detailing, which will not be able to exceed the value by it effectively plummeted ;

III-the proof of the costs to which inciso II refers may be required at any time, upon presentation of necessary documents ; and

IV-the convenienced entities are expected to inform production in the form established by the Ministry of Health, with observation of non-generating credits

§ 5th The participation of health or education entities in support projects provided for in this article may not occur at the expense of the charitable activities provided to SUS.

§ 6th The content and value of the activities developed in each development support project institutional and service delivery to SUS should be the subject of annual reports, referred to the Ministry of Health for monitoring and surveillance, without prejudice to the tasks of the tax watchdog bodies.

Section II

From Education

Art. 12. The certification or its renewal will be granted to the education entity that meets the provisions of this Section and the applicable legislation.

Art. 13. For the purposes of granting the certification that it treats this Act, the education entity should apply annually in free, in the form of § 1st, at least 20% (twenty per cent) of the annual revenue effectively received under the Act No 9,870, of November 23, 1999.

§ In order to comply with the provisions of the caput, the entity shall:

I-demonstrate appropriateness to the guidelines and targets set forth in the National Plan of Education-PNE, in form of the art. 214 of the Federal Constitution ;

II-meet the minimum standards of quality, injured by the evaluation processes conducted by the Ministry of Education ; and

III-offer scholarships in the following proportions:

a) at a minimum, an integral scholarship for every 9 (nine) paying students from basic education ;

b) partial grants of 50% (fifty per cent), when necessary for the range of the minimum number required.

§ 2nd The proportions provided for in the inciso III of § 1st can be met by considering different steps and modalities of presential basic education.

§ 3rd Complementarmente, for the fulfilment of the proportions provided for in the incision III of § 1st, a entity will be able to account for the amount earmarked for assistive actions, as well as the free education of basic education in specific units, programs supporting scholarship students such as transportation, uniform, teaching material, plus others, defined in regulation, up to the amount of 25% (twenty-five per cent) of the gratuity provided for in the caput.

§ 4th To achieve the condition provided for in § 3rd, the entity will be able to observe the scale of suitability successive, in accordance with the financial year of validity of this Act:

I-up to 75% (seventy-five per cent) in the first year ;

II-up to 50% (fifty per cent) in the second year ;

III-25% (twenty five per cent) from the third year.

§ § 5th Consideration of the assisteous actions those provided for in the Act no 8,742, December 7 of 1993.

§ 6th To the entity which, in addition to acting in basic education or in distinct area of education, also atue in higher education, the provisions of art apply. 10 of Law No 11,096 of January 13, 2005.

Art. 14. For the purposes of this Act, the scholarship refers to the semestralities or school annuities fixed in the form of the law, vetoed the collection of tuition fee and the cost of didactic material.

§ 1st A full study scholarship will be awarded to student whose monthly income per capita does not exceeds the value of 1 to 1/2 (one and a half) minimum wage.

§ 2nd A partial scholarship will be awarded to student whose monthly income per capita does not exceeds the value of 3 (three) minimum wages.

Art. 15. For the purposes of the certification referred to in this Act, the student to be benefited will be pre-selected by the socioeconomic profile and, cumulatively, by other criteria defined by the Ministry of Education.

§ 1st students grantees of the scholarships of which it treats this Act or their parents or responsible, when it is the case, to legally respond by the truthfulness and authenticity of the socioeconomic information by them.

§ 2nd Compete to the education entity to provide the information regarding the socioeconomic profile of the candidate.

§ 3rd Scholarships may be cancelled at any time, in case of a finding of the false-information of the information provided by the scholarship or its responsible, or of document insuitability presented, without prejudice to the other possible civil and criminal penalties.

Art. 16. Any discrimination or difference in treatment between scholarship and paying students is vetoed.

Art. 17. In the act of renewal of certification, education entities that have not applied free of charge the minimum percentage predicted in the art caput. 13 will be able to make up for the percentage due in the immediately subsequent financial year with an addition of 20% (twenty percent) over the percent to be compensated.

Single Paragraph. The provisions in this article achieves so only the entities that have applied at least 17% (seventeen percent) in gratuity, in the form of art. 13, in each financial year to be considered.

Section III

From Social Assistance

Art. 18. The certification or its renewal will be granted to the social assistance entity that provides services or carries out assistive actions, free of charge, continued and planned, to users and to whom they require, without any discrimination, observed Law No. 8,742 of December 7, 1993.

§ 1st Social welfare entities to which the caput refers are those that they provide, with no purpose for-profit, fulfillment and advising to beneficiaries, as well as those who act in defense and guarantee of their rights.

§ 2nd The entities providing services with a goal of enabling and rehabilitation of person with disability and promotion of their integration to community life and those covered by the provisions of art. 35 of Law No 10,741, from 1st October 2003, will be able to be certified as long as they substantiate the offer of at least 60% (sixty per cent) of their capacity to service the social assistance system.

§ 3rd The fulfillment capacity of which it treats § 2nd shall be defined annually by the entity, approved by the municipal or district social assistance manager and communicated to the Municipal Social Care Council.

§ 4th Certified Entities as social assistance will take priority in the celebration of arrangements, contracts, agreements or adjustments with the public power for the execution of programs, projects and social assistance actions.

Art. 19. They further constitute requirements for the certification of a social assistance entity:

I-be entered in the respective Municipal Board of Social Assistance or the Council of Federal District Social Assistance, as the case is, in the terms of art. 9º of Law No. 8,742 of December 7, 1993 ; and

II-integrate the national cadaster of social welfare entities and organizations from which it treats the inciso XI of the art. 19 of Law No. 8,742 of December 7, 1993.

§ 1st When the social assistance entity acts in more than one Municipality or state or in any of these and in the Federal District, you must register your activities in the Social Assistance Council of the respective Municipality of acting or the Federal District, upon presentation of your plan or activity report and the registration voucher on the Council of your headquarters or where you develop your main activities.

§ 2nd When there is no Social Assistance Council in the Municipality, the assistance entities social duty shall be inscribed in the respective State Councils.

Art. 20. The proof of the social assistance entity bond to the private socioassistive network within the SUAS is sufficient condition for the granting of the certification, within the time frame and in the form to be defined in regulation.

Section IV

From Concession and Cancellation

Art. 21. The examination and decision of the applications for granting or renewing certificates of social welfare charities will be assessed within the following Ministries:

I-of Health, as for health entities ;

II-of Education, as for educational entities ; and

III-from Social Development and Combat to Hunger, as for social welfare entities.

§ 1st The entity interested in the certification should submit, along with the application, all the documents necessary for the proof of the requirements that it treats this Act in the form of the regulation.

§ 2nd The tramway and the consideration of the application should comply with the chronological order of its presentation, save in case of outstanding due diligence, duly justified.

§ 3rd The application will be assessed within the time limit to be laid down in regulation, observed as peculiarities of the Ministry responsible for the area of acting of the entity.

§ 4th the period of validity of the certification will be fixed in regulation, observed specificities of each of the areas and the minimum term of 1 (one) year and maximum of 5 (five) years.

§ 5th The administrative process for certification should, in each Ministry involved, count on full advertising of their tramway, and should enable society to follow up on the internet monitoring of the whole process.

§ 6th The Ministries responsible for certification should maintain, at the respective sites in internet, updated list with the data relating to certificates issued, their duration and on the certified entities, including the services provided by those within the framework of the certificate and financial resources to them intended.

Art. 22. The entity that attests in more than one of the areas specified in art. 1st should apply for certification and its renewal in the Ministry responsible for the preponderant acting area of the entity.

Single Paragraph. It is considered to be preponderant acting area that defined as principal economic activity in the National Cadastro of the Legal Person of the Ministry of Finance.

Art. 23. (VETADO)

Art. 24. The Ministries referred to in art. 21 should ensure compliance with the conditions that have given the organisation's certification as a welfare benefit, and it is recommended to confirm that such requirements are being met on the occasion of the consideration of the application for renewal of the certification

§ 1st The application for renewal of the certification should be filed with minimum advance notice of 6 (six) months of the final term of its validity.

§ 2nd certification of the entity shall remain valid until the date of the decision on the application tempestively presented renovation.

Art. 25. Noted, at any time, the non-compliance with the requirement laid down in this Chapter, certification will be cancelled, in accordance with regulation, the adversarial and the broad defence.

CHAPTER III

DOS RESOURCES AND REPRESENTATION

Art. 26. From the decision to dismiss the application for granting or renewing certification and the decision cancelling the certification shall be appeal by the concerned entity, ensured the adversarial, broad defence and participation of the Company civil, in the form defined in regulation, within 30 (thirty) days, counted from publication of the decision.

Art. 27. Verified practice of irregularity in the certified entity, they are competent to represent, in particular, the Ministry responsible for their area of acting, without prejudice to the powers of the Public Prosecutor:

I-the municipal or state manager of SUS or SUAS, in accordance with their management condition, well as the manager of municipal, district or state education ;

II-the Office of the Federal Revenue Revenue of Brazil ;

III-the advice of accompanying and social control provided for in Law No 11,494 of June 20, 2007, and the Councils for Social and Health Assistance ; and

IV-the Court of Auditors of the Union.

Single Paragraph. The representation shall be directed to the Ministry which has granted certification and shall contain the qualification of the representative, the description of the facts to be ascertained and, where possible, relevant documentation and other relevant information for enlightenment of your object.

Art. 28. It will be up to the competent Ministry:

I-give science of the representation to the entity, which will have the 30 (thirty) days for presentation of defense ; and

II-decide on the representation, within 30 (thirty) days after the presentation of the defense.

§ 1st If unfounded the representation of which treats the inciso II, the process will be filed.

§ 2nd If the representation is made that it treats the inciso II, after final decision or transcorrects the deadline for appeal interposition, the responsible authority is expected to cancel the certification and give science of the fact to the Office of the Federal Revenue Office of Brazil.

§ 3rd The representative shall be scientific of the decisions of which they treat § § 1st and 2nd.

CHAPTER IV

DA EXEMPTION

Section I

From Requirements

Art. 29. The beneficial entity certified in the form of Chapter II will make jus for exemption from the payment of the contributions of which they treat the arts. 22 and 23 of the Act No 8,212 of July 24, 1991, provided that it meets, cumulatively, to the following requirements:

I-do not perceive their directors, advisers, associates, institutors or benefactors, remuneration, advantages or benefits, directly or indirectly, for any form or title, on the grounds of the competencies, functions or activities assigned to them by the respective constitutive acts ;

II-apply their rents, their resources and eventual surplus in full in the national territory, in the maintenance and development of your institutional objectives ;

III-present negative certificate or positive certificate with negative effect of relative débitoes to tributes administered by the Office of the Federal Revenue Office of Brazil and certificate of regularity of the Service Time Guarantee Fund-FGTS ;

IV-maintain regular accounting clerical registration that records revenue and expenses as well as the segregated application in a segregated manner, in line with the standards emanated from the Federal Accounting Board ;

V-do not distribute results, dividends, bonuses, holdings or plots of your estate, in whatever form or pretext ;

VI-conserve in good order, by the time limit of 10 (ten) years, counted from the date of issue, the documents that substantiate the origin and application of its resources and those relating to acts or operations carried out that involve modification of the patrimonial situation ;

VII-complies with ancillary obligations laid down in tax legislation ;

VIII-present the accounting and financial statements duly audited by auditor legally entitled under Regional Accounting Boards when the annual gross income earned is higher than the limit set by the Supplementary Law no 123, December 14, 2006.

Art. 30. The exemption for this Act does not extend to the entity with a legal personality of its own constituted and maintained by the entity to which the exemption was granted.

Section II

From Recognition and Suspension of the Right to Exemption

Art. 31. The right to exemption from social contributions may be exercised by the entity from the date of publication of the granting of its certification, provided that it has met the provisions of Section I of this Chapter.

Art. 32. Found to be discompliance by the entity of the requirements stated in Section I of this Chapter, the supervision of the Office of the Federal Revenue Office of Brazil will launder the self-infraction relative to the corresponding period and report the facts that demonstrate the non-compliance with such requirements for the enjoyment of the exemption.

§ § You shall automatically consider suspended the right to exemption from the contributions referred to in the art. 31 during the period when the requisite disfulfilment in the form of this article is found, and the corresponding launch shall have as an initial term the date of the occurrence of the infraction which gave it cause.

§ 2nd The provisions of this article shall comply with the rite of the current tax administrative procedure.

CHAPTER V

GENERAL AND TRANSITIONAL PROVISIONS

Art. 33. The entity that attests in more than one of the areas to which the art refers. First, in the form of regulation, it should maintain segregated accounting clerical writing by area, so as to highlight the heritage, revenues, costs and expenses of each activity performed.

Art. 34. Applications for granting original Certificate of Social Benefit Charities that have not been subject to trial until the date of publication of this Act will be referred, in accordance with the entity's area of acting, to the Ministry responsible, who will judge them under the legislation in force at the time of the application protocolization.

§ 1st Case the requesting entity attests in more than one of the areas covered by this Act, the application will be referred to the Ministry in charge of the preponderant acting area of the entity.

§ 2nd Das decisions handed down in the terms of the caput that are favourable to the entities will not fit feature.

§ 3rd of the rejection decisions handed down on the basis of the caput shall be appeal within the period of 30 (thirty) days, addressed to the Minister of State in charge of the area of acting of the entity.

§ 4th Is the entity obliged to offer all the information necessary for the analysis of the application, in the terms of the art. 60 of Law No 9,784 of January 29, 1999.

Art. 35. Applications for renewal of Certificate of Benefit Benefit of Social Assistance Entity and not yet adjudicated until the date of publication of this Act will be judged by the Ministry of the area within the maximum period of 180 (one hundred and eighty) days from the referred to date.

§ 1st The current representations in the CNAS in the face of the renewal of the certificate referred to in the caput, will be judged within the maximum period of 180 (one hundred and eighty) days after the publication of this Act.

§ 2nd Das decisions of rejection handed down on the basis of the caput shall be appeal within the period of 30 (thirty) days, with suspensive effect, directed at the Minister of State responsible for the area of acting of the entity.

Art. 36. Found at any time any irregularity, the organisation's certification shall be deemed to have been cancelled since the actual occurrence of the infraction, without prejudice to the requirement of the tax credit and the other penalties provided for in law.

Art. 37. (VETADO)

Art. 38. The entities certified until the day immediately prior to the publication of this Act will be able to apply for renewal of the certificate up to the date of its validity.

CHAPTER VI

FINAL PROVISIONS

Art. 39. (VETADO)

Art. 40. The Ministries of Health, Education and Social Development and Combat to the Famer will inform the Office of the Federal Revenue Office of Brazil, in the form and time frame by this certain, applications for original and renovation certification, as well as the definitely under the under the terms of Section IV of Chapter II.

Single Paragraph. The Ministries of Health, Education and Social Development and Combat to the Famer will undertake the re-enrollment of all non-profit, charitable or non-profit entities, acting in their respective areas by up to 180 percent (percent and eighty) days after the date of publication of this Act, and will make the respective cadasters available for public consultation.

Art. 41. Entities exempted in the form of this Act should maintain, in place visible to the public, indicative board containing information about their benefit condition and on their acting area, as per the provisions of the art. 1st.

Art. 42. The incisos III and IV of the art. 18 of the Act No. 8,742 of December 7, 1993, pass vigorously with the following essay:

?Art. 18. ................................................

.......................................................................................

III-monitor and scrutinize the process of certification of social welfare entities and organizations in the Ministry of Social Development and Combat to Fome ;

IV-appreciate annual report that will contain the relation of certified social welfare entities and organizations as beneficial and forward it for knowledge of the Social Assistance Councils of the States, Municipalities and the Federal District ;

................................................................................? (NR)

Art. 43. They will be the subject of operational audit the acts of the public managers provided for in the single paragraph of art. 3rd, at art. 8th and in the § 4th of the art. 11.

Art. 44. Revoke:

I-the art. 55 of Law No 8,212 of July 24, 1991 ;

II-o § 3rd of art. 9th and the single paragraph of art. 18 of Law No 8,742 of December 7, 1993 ;

III-the art. 5th of the Act No 9,429 of December 26, 1996, in the part amending the art. 55 of Law No 8,212 of July 24, 1991 ;

IV-the art. First of Law No 9,732 of December 11, 1998, in the part amending the art. 55 of Law No 8,212 of July 24, 1991 ;

V-o art. 21 of Law No 10,684 of May 30, 2003 ;

VI-the art. 3rd of the Provisional Measure no 2.187-13, August 24, 2001, in the part that changes the art. 55 of Law No 8,212 of July 24, 1991 ; and

VII-the art. 5th of the Provisional Measure no 2.187-13, August 24, 2001, in the part that changes the arts. 9th and 18 of the Act No 8,742 of December 7, 1993.

Art. 45. This Act shall enter into force on the date of its publication.

Brasilia, November 27, 2009 ; 188th of the Independence and 121st of the Republic.

LUIZ INACIO LULA DA SILVA

Guido Mantega

Fernando Haddad

Jose Gomes Tembasement

Patrus Ananias