Tax on income and earnings of any nature
The Tax on Income and Earnings of any nature is one of the taxes instituted by the Federal Union, provided in the Constitution, in its article 153, item III. In the National Tax Code, it is provided for in article 43.
Income tax is governed by Law No. 7.713/88, which provides that persons suffering from malignant neoplasia or other serious diseases and who are inactive are exempt from the payment of income tax on income received as retirement, pension or pension, see below:
Art. 6 The following income received by individuals is exempt from income tax
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XIV - the proceeds of retirement or retirement due to an accident in service and those received by individuals suffering from occupational disease, active tuberculosis, mental illness, multiple sclerosis, malignant neoplasm, blindness, Hansen's disease, irreversible and incapacitating paralysis, severe heart disease, Parkinson's disease, ankylosing spondyloarthrosis, severe nephropathy, severe liver disease, advanced stages of Paget's disease (osteitis deformans), contamination by radiation, acquired immunodeficiency syndrome, based on the conclusion of specialized medicine, even if the disease was contracted after retirement or retirement;
Objectively, the legislation provides that people suffering from serious illnesses, as established in item XIV of Article 6 of Law No. 7.713/88, shall not pay income tax on income received as retirement, pension or pension.
The purpose of the benefit provided by law is precisely to reduce the sacrifices of the taxpayer suffering from a serious illness, relieving him of the financial burden resulting from the treatment of the disease.
The amounts that complement the retirement are also considered exempt, such as those received as a private pension plan and pension in compliance with an agreement or judicial decision, or even by public deed, including the provision of provisional alimony. It is important to emphasize that the retiree is entitled to the exemption even if the disease was contracted after his/her retirement.
The taxpayer may submit the documents proving the serious illness to the agency that pays the retirement benefit, which will verify the other conditions for the concession of the exemption. If the exemption is denied, the aggrieved party may file a lawsuit to claim the guarantee of compliance with the law.
According to the law, also exempt are the proceeds of retirement or retiring due to a work accident and those received by those suffering from a professional illness.
The Attorney General of the Republic filed an ADI claiming that article 6, XIV of Law No. 7,713/88 was unconstitutional on the grounds that it granted income tax exemption only for persons receiving retirement, pension or pension. According to the PGR, the law should have also granted the benefit to workers who are still working and are affected by the diseases listed in the legal provision.
Thus, it is observed that the objective of the PGR was not to remove art. 6, XIV, of Law No. 7.713/88 from the legal system, but to extend this benefit also to workers in activity.
In the action, the PGR argued for the issuance of a manipulative decision with additive effects to, "recognizing the partial unconstitutionality without reduction of the text of art. 6, XIV of Law No. 7.713/1988, declare that, in its scope of incidence, is included the granting of the tax benefit to workers with serious illness who remain active.
However, the reasons exposed by the PGR were not accepted by the STF, which understood that this exemption is due only to people who receive retirement, pension or retirement.
According to the position taken in ADI 6025, the Judiciary cannot grant tax exemptions to those not contemplated by the legal favor, as this would amount, in the final analysis, to turning the Judiciary into an inadmissible positive legislator.
The STF held that the granting of tax exemptions is a discretionary act of the federal entity with power to institute taxes and must strictly observe the principle of legal reserve (article 150, paragraph 6 of the Federal Constitution).
Therefore, it was understood that the legislation opted for absolutely reasonable cumulative criteria for the concession of the tax benefit, namely, inactivity and serious illness, even if contracted after retirement or pension, as well as that the exemption can only be granted to people who receive retirement, pension or pension.
Bianca Modafferi
Monitor at the Post-graduation course in Tax Law at CEDIN Law School
