The Superior Court of Justice (STJ) in Brazil recently ruled on a significant issue for medical clinics and other health service providers. The decision, made in REsp 1.116.399/BA – Repetitive Theme No. 217, benefits companies that choose taxation based on presumed profit and comply with the regulations of the National Health Surveillance Agency (ANVISA).
Central Point of Controversy: The debate was centered on the definition of “hospital services” for the incidence of Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL), specifically the interpretation of the term “hospital services” mentioned in Article 15, § 1º, item III, letter “a” of Law 9.429/95.
Legal Classification: According to Law No. 9.249/95, the presumed profit is 32% for service providers in general. However, the same Law stipulates that this rate does not apply to hospital services and certain other types of health care, provided these entities operate as business societies and comply with ANVISA standards. For such service providers, the presumed profit percentages are 8% for IRPJ and 12% for CSLL, resulting in a lower tax burden.
STJ Decision: The Superior Court determined that the term “hospital services” includes services directly aimed at health promotion, whether or not in a hospital establishment. However, it is important to emphasize that medical consultations are excluded from this benefit.
Consequences for Companies: Business societies that meet ANVISA standards and provide hospital services can benefit from this decision, applying the lower percentage of 8% for IRPJ and 12% for CSLL on turnover. These companies also have the right to request reimbursement for amounts incorrectly paid over the last five years.
Important Details: The court highlighted that a company does not need its own establishment to benefit from the lower rate, as long as it follows ANVISA regulations. The reduction of the calculation base is granted considering the service and not the provider’s structure.
Conclusion: Health sector companies that follow ANVISA regulations and provide hospital services, even outside a hospital environment, have the right to collect IRPJ and CSLL at rates of 8% and 12%, respectively. Furthermore, they can request the refund of overpaid amounts in the last five years, adjusted by the SELIC.