Legislative flexibilization for cerification of non-profits hospitals in Brazil

Abstract

For charitable social assistance entities that provide services to the Brazilian Nacional Health System, the Federal Constitution of 1988 provided for the concession of tax immunity, as long as the requirements established by Law were met. There is a first difficulty in establishing the concepts of philanthropic entity and charitable entity of social assistance, as well as the differences between them. The objective of this paper was to conduct a review and a reflection on the  doctrinal difference between the concepts of philanthropy and social charity, discuss the historical process of certification of non-profit hospitals that provide services to the Brazilian National Health System, to obtain tax immunity and identify the consequences of this for social security (pension, health and social assistance). This reflection is of utmost importance, especially in times of scarcity of financial resources, in which there are attempts to weaken the social security system of the country. The Federal Constitution of 1988 adopted the term “social assistance beneficent entity” for the concession of tax immunity, a concept that is distinguished from philanthropy because it involves three essential characteristics of social assistance: services of an essential nature, gratuitousness, and generalized access to those in need. This broadening of the concept and the legislative flexibilities that have occurred over the years to allow the concession of the certificates - and, consequently, the obtainment of tax immunity - impairs the collection of resources for social security and can cause disadvantages for the Brazilian National Health System.