A incongruência da imunidade de IPTU para os templos de qualquer culto na condição de locatários: um estudo a partir da PEC nº 200/2016

Abstract

This paper aims to analyze the incongruity of the Proposal of Amendment to the Constitution (PEC) nº 200/2016 that proposes the extension of the immunity of the temples of any cult in the condition of tenants, so that these subjects do not suffer the taxation of Property Tax Predial and Territorial Urban (IPTU). It should be noted that the Federal Constitution of 1988 (CRFB / 88) delimited the hypotheses of tax immunity because it is a limitation on the power to tax in order to guarantee the protection of a fundamental right. In the case of religious immunity the scope is to protect the freedom of belief. In the meantime, PEC 200/2016 defends the extension of this immunity for renters because rent contracts generally transfer the responsibility of paying the lessor's IPTU to the renter making it more difficult to practice religious activities with a further pecuniary charge . Thus, the IPTU tax incidence matrix was analyzed and one of the characteristics is that the taxable person, the taxpayer, of this tax is the owner, the holder of the useful domain or the holder with animus domini (intention to act as the taxpayer). owner), concluding that the lessee is not a taxpayer. Moreover, even if private agreements allow the transfer of responsibility for the payment of the IPTU to the lessee, they can not be opposed to the Public Treasury, as provided by the National Tax Code (CTN). Therefore, there is no way to immunize a subject who is not a taxpayer. In addition, if this PEC becomes a Constitutional Amendment will violate the principle of tax isonomy, as it will benefit property owners renting property for religious entities. Lastly, PEC 200/2016 brings the possibility of increasing tax fraud even more, since it is common practice to have temples of facade, distorting religious immunity. Therefore, through the analysis of jurisprudence, scientific articles, as well as CRFB / 88, CTN and PEC 200/2016, it is understood that if this proposal is approved it will generate a stir in the Brazilian legal system.