A imunidade de impostos das instituições de educação sem fins lucrativos e sua correlação com o direito fundamental à educação

Abstract

The present research aims to analyze the tax immunity of non-profit educational institutions, provided for in art. 150. VI, “c” of the Federal Constitution of 1988, exposing its relevant and controversial aspects, as well as the extent of its application. This work, which has as a background the correlation of immunities with fundamental rights, is part of the context that a better definition of the criteria for recognizing an entity as a non-profit educational institution would contribute to the achievement of the constitutional objective to attract the private sector to cooperate in providing an inclusive, equitable and quality education for the Brazilian population. Although the Federal Constitution protects education, encouraging the third sector, through non-profit education institutions, to work together with the Public Administration in order to meet social demands in the educational field, it appears that there is much to be implemented in the normative field. Currently, only the National Tax Code – CTN establishes requirements for these entities to enjoy constitutional immunity, which, by itself, has not proved to be sufficient. In terms of infra-constitutional legislation, there is room for a complementary law to create requirements, as well as, in order to eliminate the recognition gaps currently detected, the need for ordinary law, in harmony with constitutional discipline, to establish provisions that confer more concreteness to the requirements foreseen in article 14 of the CTN. Finally, it notes that the sharing of tax information between the Entities of the Federation should be encouraged, as it constitutes a valuable instrument for the optimization of tax control and the restriction of unfair competition in the sector.