Provisional Measure No. 446, November 7 2008

Original Language Title: Medida Provisória nº 446, de 7 de Novembro de 2008

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Get a Day Pass for only USD$9.99.
Provisional measure no. 446, NOVEMBER 7 2008.
Rules on the certification of charitable social assistance entities, regulates the procedures for exemption from social security contributions, and other matters.
The PRESIDENT of the REPUBLIC, in the use of the role that gives the art. 62 of the Constitution, adopts the following provisional measure, with force of law: chapter I PRELIMINARY PROVISIONS Art. 1st the certification of charitable entities of social assistance and exemption from social security contributions will be granted to legal entities of private law, non-profit, recognised as charitable entities of social assistance for the purpose of providing services in the areas of social assistance, health or education, and that meet the provisions of this provisional measure.
Art. 2 entities contemplated in art. 1 must comply with the principle of universality of service, being forbidden to drive its activities exclusively to their members or Professional category.
CHAPTER II Art CERTIFICATION. 3 the certification will be granted to charitable entity to demonstrate, in the 12 months preceding the application, the provisions of sections I, II and III of this Chapter, according to their area of expertise.
§ 1 in the situations provided for in regulation, the demonstration of compliance with the provisions in the caput may be based on the first twelve months contained in sixteen months prior to the application.
§ 2 the minimum period of compliance with the requirements of this article may be reduced if the entity is a service provider contracted with the Sistema Único de Saúde-SUS or with the single system of Social Assistance, if necessary attested by the Manager of the local system.
Section I of health Art. 4 To be considered a charity and do justice to the certification, the health authority shall offer the provision of all its services to SUS (national health system) in the minimum percentage of 60%, and prove the same percentage annually in hospitalizations, measured by patient.
Sole paragraph. The minimum percentage referred to in the caput can be individualized by establishment or by the medical institutions of the entity, provided that they do not cover other legal entity for it persisted.
Art. 5 the health authority should also inform, the Ministry of health, in the form established by him: (I)-the total number of hospitalizations for patients not users of SUS;
II-the total number of hospitalizations for patients users of SUS; and III-amendments relating to records in the national register of Health establishments-CNES.
Art. 6 the health entity that provides services exclusively in the outpatient area should, replacing the requirement of art. 4, annually the provision of such services to the SUS in the minimum percentage of 60%.
Art. 7 when the availability of health care coverage of the population by the public area is insufficient, the managers of the SUS should observe, to hire private services, the preference of participation of charitable health entities and non-profit.
Art. 8. On the impossibility of complying with the minimum percentage referred to in art. 4 in the hiring of health care, due to the lack of demand, declared by the local Manager of the SUS, should she prove the application of a percentage of their gross revenue in free health care as follows: I-20%, if the percentage of attendance to the SUS is less than 30%;
II-10%, if the percentage of attendance to the SUS is equal to or greater than 30 and less than 50%; or III-5%, if the percentage of attendance to the SUS is equal to or greater than 50%, or complete the amount of hospitalization, measured by patient-day, with free calls duly informed in accordance with the provisions of art. 5, not financed by SUS or by any other source.
Sole paragraph. For the purposes of this article, the organisation shall establish the percentage of free application on the gross revenue from the sale of services, increased revenue arising from financial investments, property rental, sale of goods belonging to the fixed assets and private donations.
Art. 9 the value applied in gratuity on health, when not evidenced by means of specific accounting records and reported in accordance with the provisions of art. 5, will be obtained by the valuation of the procedures based on the tables of payments of the SUS.
Art. 10 in no event will be admitted as a free application any difference between the amounts paid by the SUS and the prices charged by the entity or by the market.
Art. 11 health entity may, Alternatively, to comply with the requirement laid down in art. 4, undertake projects to support the institutional development of the SUS, celebrating fit with the Union through the Ministry of health, in the following areas: I-evaluation studies and incorporation of technologies;
II-human resources training;
III-public interest in health research; or IV-technical development and operation of health services management.
§ 1 the Ministry of health shall define the technical requirements essential for the recognition of excellence for each of the areas of activity provided for in this article.
§ 2 the resource spent for health entity in the design of support may not be less than the value of the social contributions exemption applies.
§ 3 the support project will be approved by the Ministry of health, after hearing the instances of the SUS according to procedure laid down in the relevant Act Minister of State.
§ 4 The health organizations that will benefit from the condition laid down in this article may complement the activities relating to support projects with the provision of outpatient and hospital services to SUS, unpaid, by agreement with the local Manager of the SUS, observing the following conditions: i. the addition may not exceed the 30% value enjoyed with the exemption of the social contributions;
II. the health authority shall submit to the local Manager of the SUS, plan to work with customer service and detailed forecast of costs, which may not exceed the value for she effectively spent;
III-evidence of the costs referred to in subparagraph (II) may be required at any time, upon presentation of the necessary documents; and IV-the entities shall inform the production in the form established by the Ministry of health, with the observation of no generation of credits.
§ 5 participation of the entities of health support projects referred to in this article may not occur at the expense of charitable activities provided to the SUS.
§ 6 the content and the value of the activities developed in each institutional development support project and to provide services to SUS (national health system) should be subject to annual reports, which will be forwarded to the Ministry of health for follow-up and supervision, without prejudice to the powers of the tax bodies.
Art. 12 the provision of services referred to in art. 6 and the caput of the arts. 4 and 8 shall be upon the formalization of an agreement with the definition of quantitative and qualitative goals established in operating plan, in accordance with agreement between the local Manager of the SUS and the legal guardian by the entity.
Section II of the Art Education. 13 the certification will be granted to the education that meets the provisions of this section and the applicable legislation.
Art. 14 for the purposes of granting certification of this provisional measure, the education must apply annually in gratuity, in the form of § 1, at least 20% of the gross revenue from the sale of services, increased revenue arising from financial investments, leasing of assets, sale of goods and donations.
§ 1 to comply with the provisions in the caput, the organisation shall: (I)-demonstrate compliance with guidelines and goals established in the National Education Plan-PNE, in the form of art. 214 of the Constitution;
II-meet the minimum standards of quality, measured by the evaluation processes conducted by the Ministry of education; and III-offer scholarships in the following proportions: a) at least one full scholarship for every nine paying students of basic education; and (b) partial scholarships, 50%) when necessary to reach the minimum percentage required.
§ 2 the proportions provided for in item III of paragraph 1 may be carried out considering different steps and methods of basic education.
§ 3 for the entity to act on higher education, yet which also act on basic education or in a separate area of education, applies the provisions of art. 10 of law No. 11096, of 13 January 2005.
Art. 15 for the purpose of this provisional measure, the scholarship refers to semestralidades or school fixed annuities in the form of law, prohibited the levying of tuition, cost of educational material or any other charge.
§ 1 the full scholarship will be awarded to a student whose monthly per capita family income does not exceed the value of one and a half minimum wage.

§ 2 the partial scholarship will be awarded to a student whose monthly per capita family income does not exceed the value of three minimum wages.
Art. 16 for the purposes of the certification referred to in this provisional measure, the student to be benefited will be preselected by the socio-economic profile and other criteria laid down by the Ministry of education.
§ 1 the students beneficiaries of scholarships in this provisional measure or their parents or guardians, when applicable, respond legally by the veracity and authenticity of the socioeconomic information provided by them.
§ 2 the entity assessing education information on the socio-economic profile of the candidate.
§ 3 the scholarships may be cancelled at any time, in case of realization of falsehood of information provided by the scholar or his responsible, or blacklisting of document presented, without prejudice to the other civil and criminal penalties applicable.
Art. 17 is prohibited any discrimination or unequal treatment between stock and paying students.
Art. 18 at the time of renewal of the certificate, the educational entities that have not applied in gratuity the minimum percentage referred to in the caput of the art. 14 may offset the percentage due on the immediately subsequent exercise, with addition of 20% on the percentage to be compensated.
(1) the provisions of this article reaches only the entities that have applied at least 17% in gratuity, in the form of art. 14, in each financial year to be considered.
§ 2 the application for renewal of the certificate will be rejected when the sum of the percentages to be compensated exceeds the 10%, considering the additions referred to in this article.
Section III of the Social Assistance Art. 19 certification will be granted to the social assistance services and free actions, continued and planned, without any discrimination and without contrast, observed the law on 8742, of 7 December 1993, subject to the provisions of § 1 of art. 35 of law No. 10741, October 1, 2003.
Sole paragraph. Social assistance entities referred to in the caput may be of assistance, advice and advocacy.
Art. 20 Are still requirements for the certification of the entities of social assistance: I-be entered in the respective Municipal Social Assistance Council or the Council of Social Welfare of the Federal District, as the case may be, pursuant to art. 9 of Act No. 8742, 1993; and II-join the national registry of entities and social assistance organizations that handles the item XI of art. 19 of Act No. 8742, 1993.
§ 1 When the social assistance act in more than one county or State, or in any of these and in the Federal District, you should subscribe to the Social Assistance Board of the respective municipality of acting or the Federal District, upon presentation of your plan or activity report and proof of registration at its headquarters or where you develop your main activities.
§ 2 when there is no Social Welfare Council in the municipality, the social assistance organizations should register in their State Councils.
Art. 21 proof of principal social assistance link to give social assistance private network within the framework of THEIR is sufficient condition for granting certification, within the time and in the manner to be laid down in a regulation.
Section IV Granting and cancellation Art. 22 granting certification requirements of charitable entities of social assistance will be assessed by the following Ministries: I-health, as health authorities;
II-education, with regard to educational entities; and III-of Social development and fight against hunger, as the entities of social assistance.
§ 1 the entity interested in certification should submit, along with the application, all documents necessary for verifying the requirements of this provisional measure, in the form of regulation.
§ 2 the processing and examination of the application should obey the chronological order of their presentation, except in cases duly justified pending due diligence.
§ 3 the request will be appreciated within a period to be established in regulation, observed the peculiarities of the Ministry responsible for the area of activity of the entity.
§ 4 the period of validity of the certification will be set in regulation, in compliance with the specific characteristics of each area and the minimum term of one year and a maximum of three years.
Art. 23 the entity to act in more than one of the areas specified in art. 1 and whose annual revenue is up R$ 2,400,000.00 (us $ 400,000) should require certification and renewal in the Ministry responsible for leading performance of the entity.
Sole paragraph. It is considered important that area in which the entity applies the bulk of its revenue.
Art. 24 the entity to act in more than one of the areas specified in art. 1 and whose annual revenue exceeds R$ 2,400,000.00 (us $ 400,000) should require certification and renewal in each of the Ministries responsible for the respective areas of expertise of the Organization, as provided in sections I to III of art. 22. First paragraph. The effects of certification will be valid only for the specific area in which the entity has complied with the requirements for certification.
Art. 25 for the purposes of the provisions of arts. 23 and 24, it is considered that revenue from the provision of services, increased revenue arising from financial investments, leasing of assets, sale of goods and donations.
Art. 26 the ministries referred to in subparagraphs I to III of art. 22 shall ensure compliance with the conditions that ensejaram the entity as social assistance benefit, and they confirm that these requirements are being met when applying for certification renewal.
Sole paragraph. The application for renewal of certification shall be docketed with minimum antecedence of six months of the final term of its validity.
Art. 27 established, at any time, failure to comply with requirements established in this chapter will be canceled the certification, assured the adversarial and the ample defense.
CHAPTER III of section I of the EXEMPTION Requirements Art. 28 to benefit certified entity in the form of chapter II will live up to the exemption from payment of contributions that deal with the arts. 22 and 23 of law No. 8212, of 24 July 1991, provided that meets, cumulatively, the following requirements: (I) it is constituted as a legal entity in accordance with the chapeau of article. 1st;
II-don't understand, its officers, directors, members, founders or benefactors, remuneration, benefits or benefits, directly or indirectly, for any form or title, in reason of the powers, functions or activities attributed to them by their constituent acts;
III-apply their incomes, their resources and fully in national territory surplus, if any, in the maintenance and development of its institutional goals;
IV-provide for, in their constituent acts, in case of dissolution or extinction, the allocation of any remaining assets to similar nonprofits or public entities;
V-don't be incorporated with individual assets or charitable-free society;
I saw present tax clearance certificate or positive effect negative certificate of debts related to taxes administered by the internal revenue service of Brazil and to the Union's active debt certificate of guarantee fund-FGTS Service time and regularity in the face of the register Informative non-Paid Federal public sector-CADIN;
VII-keep regular bookkeeping to record income and expenses, as well as the free application so segregated, in line with the generally accepted accounting principles and standards issued by the Federal Accounting Council;
VIII-do not distribute results, dividends, bonuses, or portions of their equity participations, in any form or pretext;
IX-apply subsidies and donations received on the purposes that are bound;
X-keep in good order for a period of ten years, counted from the date of issue, the documents proving the origin of their recipes and putting their expenses, as well as the acts or operations conducted to modify its assets and liabilities;
Xia meets the ancillary obligations established in the tax legislation; and XII-watch for compliance with other requirements established in law, related to the functioning of the entities referred to in this article.
Art. 29 the exemption referred to in this provisional measure does not extend the entity with its own legal personality established and maintained by the entity to which the exemption was granted.
Section II of the granting and cancellation Art. 30 the right to exemption from social contributions may be exercised by the entity from the date of its certification by the competent authority, provided that satisfied the provisions of Section I of this Chapter.

Art. 31 Found the lack of compliance by the entity of the requirements set out in section I of this Chapter, enforcement of the internal revenue service of Brazil will plow the infraction on the corresponding period and report the facts that demonstrate the non-attendance of such requirements for the enjoyment of the exemption.
§ 1 the initial term will be to release the date of occurrence of the infraction that gave her cause.
§ 2 the provisions of this article shall apply to the procedure of the rite 70235, Decree No. 6 of March 1972.
CHAPTER IV of the RESOURCES and of Art. 32 of the decision to reject the application for the grant or renewal of certification and of the decision to cancel the certification appeal on the part of the entity concerned, as defined in regulation, within thirty days as of the publication of the decision.
Art. 33 Observed practice of irregularity in the approved organisation, are competent to represent, so justified, the Ministry responsible for their area of expertise, without prejudice to the powers of the public prosecutor's Office: I-the user of the services provided by the entity;
II-the municipal Manager or SUS or THEIR State, according to its condition of management as well as the municipal or State Education Manager; or (III)-the internal revenue service of Brazil.
Sole paragraph. The representation will be directed to the Agency which granted certification and will contain the qualification of representative, the description of the facts to be established and, whenever possible, the relevant documentation and other relevant information for the clarification of your object.
Art. 34 the competent Ministry: I-give science of representation to the entity, which will have 30 days to submit defense, assured the protection of the identity of the representative mentioned in item (I) of art. 33, when by this requested or when deemed necessary by the competent authority; and II-decide on the merits of the representation, within 30 calendar days of the lodging of the defence.
§ 1 If unfounded the representation of item II, the procedure will be filed.
§ 2 If well founded the representation of item II, the responsible authority shall cancel the certification and give science the fact to the internal revenue service of Brazil.
§ 3 the representative will be cientificado of decisions dealing with the §§ 1 and 2.
Chapter V GENERAL and transitional PROVISIONS Art. 35 the entities mentioned in art. 24 are required to create a legal entity for each of their areas of expertise, with own number on the national registry of legal entities-CNPJ.
§ 1 Each legal entity created in the form of the caput must submit application certification itself to the Ministry responsible for their area of expertise.
§ 2 the entities operating on the date of publication of this provisional measure that are not framed in terms of the caput shall meet such requirements within 12 months.
§ 3 During the period referred to in § 2, entities may request the renewal or grant from their certification on the basis of the procedure laid down in art. 23. Art. 36 concession requests from Beneficent Entity certificate of Social Assistance have not been the object of trial by the National Council for Social assistance-CNAS until the publication date of this provisional measure shall be sent to the Ministry, according to the area of expertise of the Organization, that the judge, in accordance with the legislation in force at the time of application.
§ 1 where the applicant acts in more than one of the areas covered by this interim measure, the application shall be submitted to the Ministry responsible for leading performance of the entity.
§ 2 of the judgments given pursuant to the chapeau, which are favourable to entities, not an appeal.
§ 3 the decisions of refusal, made on the basis of the caput, an appeal without suspensive effect, within ten days, addressed to the Minister of State responsible for the area of activity of the entity.
§ 4 Is the entity obliged to provide all the information necessary for the examination of the application pursuant to art. 60 of law No. 9784, of 29 January 1999.
Art. 37 applications for renewal of certificate of Social assistance Beneficent Entity protocolizados, which have not yet been the subject of judgment on the part of the CNAS until the publication date of this provisional measure, shall be deemed to be granted.
Sole paragraph. Ongoing representations on the proposals by the Executive power CNAS in face of the renewal referred to in the caput shall be harmed, including in relation to previous periods.
Art. 38 Is extinguished in resource processing until the publication date of this provisional measure, relating to application for renewal or originating entity certificate Social assistance Benefit granted by CNAS.
Art. 39 applications for renewal of certificate of Social assistance Beneficent Entity rejected by CNAS, which are object of the request for reconsideration or an appeal pending trial until the publication date of this provisional measure, shall be deemed to be granted.
Art. 40 the original concession granted in the form of art. 36 will be recognized as the certification authority for the purposes of this provisional measure, since I met the other requirements in it.
Art. 41 the certificates of Social assistance Beneficent Entity expire within 12 months from the publication of this provisional measure shall be extended by twelve months, provided that the entity maintain the requirements demanded by the legislation in force at the time of its granting or renewal.
Art. 42 the entity that you are interested in obtaining or maintaining the exemption should formulate request for certification as social assistance beneficent entity in accordance with the provisions laid down in chapter II.
Art. 43 the requirements for recognition of exemption protocolizados before the internal revenue service of Brazil, pending consideration until the date of publication of this provisional measure, follow the rite established by previous legislation.
CHAPTER VI FINAL PROVISIONS Art. 44 the ministries of health, of education and of Social development and fight against hunger shall inform the Secretariat of Federal revenue of Brazil, in the form and terms established by it, the original certification applications and renewal granted and definitely be rejected pursuant to section IV of chapter II.
Art. 45 exempt entities in the form of this provisional measure shall maintain, in a place visible to the public, sign containing information about the charity and its area of activity, as the art. 1, and the services that are provided free of charge.
Art. 46 the ministries of finance, Social development and fight against hunger, health and education edited additional acts necessary for the execution of this provisional measure.
Art. 47 items III and IV of the art. 18 of the law on 8742, of 7 December 1993, with the following wording: "III-monitor and oversee the process of certification of entities and social service organizations with the Ministry of Social development and fight against hunger;
IV-enjoy annual report which contains the list of entities and social assistance organizations certified as charities and forward it to knowledge of the Social Councils of the States, Municipalities and the Federal District; " (NR)
Art. 48 Repealed: I-art. 55 of law No. 8212, of 24 July 1991;
II-§ 3 of art. 9 and the sole paragraph of art. 18 of the law on 8742, 7 December 1993;
III-the art. 5 of law No. 9429, of 26 December 1996;
IV-the art. 1 of law No. 9732, of 11 December 1998, in amending art. 55 of law No. 8212, of 24 July 1991;
V-the art. 21 the law 10684 of 30 in May 2003;
I saw the art. 3 of provisory measure in 2,187-13, August 24, 2001 amending art. 55 of law No. 8212, of 24 July 1991; and VII-the art. 5 of a provisional measure in 2,187-13, August 24, 2001 amending the arts. 9 and 18 of law No. 8742, of 7 December 1993.
Art. 49 This provisional measure shall enter into force on the date of its publication.
Brasilia, November 7 2008; 187 of independence and 120 of the Republic.

LUIZ INACIO LULA DA SILVA Guido Mantega Fernando Haddad Marcia Bassit Lameiro Costa José Pimentel Mazzoli Patrus Ananias

Related Laws