26/03/2013
Supreme receives ADI against limits on education deduction in income tax Autor: STF
The Federal Council of the Order of Lawyers of Brazil (OAB) filed, on Monday (25), Direct Action of Unconstitutionality (ADI 4927), a preliminary injunction, questioning provisions of Law 9.250/1995 (with the wording of Law 12.469/2011) that set limits on the deduction of Income Tax of Individuals (PIT) for education expenses of the taxpayer and their dependents. According to the OAB, the imposition of limits reduced deductibility offends constitutional provisions relating to the concept of income, ability to pay, of human dignity, fairness and the right to education.
The OAB questioned items 7, 8 and 9 of section II of Article 8 of the law which set limits deduction for tax years 2012, 2013 and 2014. According to the organization, the deduction ceiling for expenditure on education is unrealistic. According to the law, for the base year 2012, the limit is R $ 3,091.35, rising to R $ 3,230.46 in 2013 and R $ 3,375.83 from the base year of 2014.
The OAB argues that, while not defending the existence of a constitutional seal of setting a reasonable limit for deduction, "either there is a constitutional duty of limited deductibility of education spending in the base of the PIT, indeed nonexistent constraint for health expenses and alimony. "
According to the organization, the purpose of ADI is not to discuss whether it would be acceptable, in theory, the imposition of a limit of deduction of expenditure on education, as long as consistent with reality. According to the file until the new law will be edited, the ceiling for deduction of these expenses would cease to exist, as occurs for other health expenses and alimony.
"What is said is just that [limit] is unconstitutional under that fixed now. The origin of this Direct Action, obviously, not the Supreme Court will set the ceiling abatement that understands legitimate. This task is being undertaken by the legislature, always subject to judicial control, "maintains the OAB.
The OAB argues that eliminating the deduction ceiling for spending on education does not undermine the internal coherence of the tax. According to the lawsuit, the deductibility of education expenses in the calculation basis of the PIT tax benefit is not subject to the whim of the legislature, but a direct consequence of the constitutional provisions relating to the concept of income, ability to pay, human dignity, not the confiscation and the right to education.
Due date for submission of the statement of adjustment PIT - April 30 - the OAB requests the immediate suspension of the provisions of the law, by decision of the Minister monocratic-Rapporteur, to be subsequently submitted to a referendum by the Plenary, or ready inclusion of the case in question, even before they heard the Presidency and Congress and the manifestation of the Attorney-General (AGU) and the Attorney General's Office (PGR).
The OAB argues that granting the injunction before the deadline for the submission of the declaration will allow taxpayers to make full deduction of expenditure on education in preparing their tax returns and impose the Internal Revenue Service of Brazil considers that the process of craft statements received before the Supreme Court decision, "everything in order to avoid undue expenditures by individuals and lessen the need for refund of amounts wrongly collected by the Union."
The rapporteur of the action is the minister Rosa Weber.
PR / AD
