CEBAS – Certification of Charitable Assistance Entities, peer-to-peer and its main changes!
New Complementary Law established requirements for obtaining the Tax Immunity
At the end of 2023, Decree No. 11,791/2023 was promulgated, which regulates Complementary Law No. 187/2021, on the Certification of Social Assistance Charitable Entities (CEBAS). The legislation put an end to the discussion that had lasted for years about the need for a law of this type to establish the necessary requirements so that philanthropic and charitable institutions could achieve Tax Immunity. Complementary Law No. 187/2021 establishes that to be considered a charitable entity, the legal entity must be non-profit, provide services in the areas of social assistance, health and education and be certified in accordance with legislation. It is necessary to reinforce that charitable entities need to be aware of the changes brought about by the New Law of CEBAS, making the necessary adjustments to meet all requirements.
Requirements to obtain certification
- Regarding the requirements to obtain certification, it can be said that the new law replicated the requirements contained in Law No. 12,101/09, which was revoked. Therefore, to prove its charitable nature, the entity must:
- Do not distribute profits;
- Apply your resources fully in the country;
- Prove your tax regularity, through debt clearance certificates;
- Maintain regular accounting, in accordance with current legislation;
- Do not transfer the benefits relating to the intended immunity to third parties;
- Keep the documents that prove the origin and registration of your resources, for a period of 10 (ten) years;
- Present the accounting and financial statements duly audited by an independent auditor, if the annual gross revenue is greater than R$ 4,800,000.00;
- Provide, in its constitutive acts, in the event of dissolution or extinction, the allocation of any remaining assets to certified charitable entities or public entities.
Links to access Certification requests:
Education: https://CEBAS.mec.gov.br/
Health: Primer
Social assistance: Primer
Requirements by area of activity
In the health area, the requirements for obtaining immunity are, alternatively:
- Provide services to the SUS;
- Provide free services;
- Act in health promotion;
- Be of recognized excellence and carry out projects to support the institutional development of the SUS.
In the education sector, the new law establishes that entities must offer full or partial scholarships to people who meet their socioeconomic profile. Any type of discrimination in the granting of these scholarships is prohibited, and it is prohibited to benefit or segregate any person based on ethnic, religious, corporate or political criteria. In relation to social assistance, it is necessary for charitable entities to provide services to the community, helping to face difficulties. For example, providing assistance to the elderly, people with disabilities, children and adolescents in need, through services, benefits, programs and projects, as established in the new legislation.
Main Changes
Comparative Table: Complementary Law No. 12,101/2009 vs. Complementary Law No. 187/2021 (CEBAS)
| Aspect | Before Decree No. 11,791/2023 | After Decree No. 11,791/2023 |
|---|---|---|
| Certification Criteria | Criteria defined by Complementary Law No. 187/2021 | Detailed criteria specified in Decree No. 11,791/2023 |
| Certification Renewal Deadline | Renewal every 5 years (LC nº 187/2021) | Maintained every 5 years with details of the renewal process |
| Required Documentation | Documentation standardized by LC nº 187/2021 | Specific and detailed list of required documents |
| Analysis Procedures | General analysis procedures defined by LC nº 187/2021 | Specific procedures and detailed deadlines for analysis |
| Supervision and Control | Centralized inspection according to LC nº 187/2021 | Supervision and control with detailed guidelines and clear mechanisms |
| Requirements for Health, Education and Social Assistance | General requirements defined in LC nº 187/2021 | Specific and detailed requirements for each area |
| Tax Exemptions | Exemptions conditional on meeting goals | Details of specific conditions and targets for exemptions |
| Transparency It is Accountability | requirements Transparency according to LC nº 187/2021 | requirements Transparency more detailed and rigorous |
| Deadlines for Process Analysis | Deadlines defined in LC nº 187/2021 | Detailed deadlines for each stage of the certification process |
| Resources and Defenses | General procedures for appeals | Specific and detailed procedures for submitting appeals |
| Penalties | Penalties defined in LC nº 187/2021 | Detailed penalties and clear procedures for enforcement |
| Participation of Civil society | Incentive for participation defined in LC nº 187/2021 | Detailed structuring and incentive for participation Civil society |
| Support and Training | Support programs defined in LC nº 187/2021 | Detailed and expanded support and training programs |
| Use of Technology | Encouraging the use of technology in LC nº 187/2021 | Detailing and regulating the use of technology and digitalization |
| Monitoring and Evaluation | General monitoring guidelines | Specific systems and procedures Monitoring and Evaluation |
This table summarizes the main changes and specifications introduced by Decree No. 11,791/2023 in relation to the regulation of Complementary Law No. 187/2021.
Comparative Table: Complementary Law nº 187/2021 vs. Decree No. 11,791/2023 (CEBAS)
| Theme | Complementary Law No. 187/2021 | Decree No. 11,791/2023 |
|---|---|---|
| Certificate Authority | Ministry of Health, Ministry of Education and Ministry of Citizenship | Same |
| Certification Requirements | Clearer and more detailed definition of requirements:<br>* Philanthropic nature of the entity;<br>* Lack of profit-making;<br>* Tax compliance;<br>* Effectiveness of philanthropic activities;<br>* Transparency management;<br>* Corporate governance;<br>* Professional qualification of the team;<br>* Adequate physical and material structure. | Greater detail and objectivity:<br>* Specification of the documents required for each type of entity;<br>* Clear criteria for evaluating the effectiveness of philanthropic activities;<br>* Objective indicators for analyzing the Transparency of management. |
| Certification Process | Simplification and speed:<br>* Maximum period of 90 days for analyzing requests;<br>* Fully electronic process;<br>* Exemption from in-person inspection for low-risk entities. | Maintaining speed:<br>* Confirmation of the maximum period of 90 days for analysis;<br>* More detailed rules for carrying out in-person inspections;<br>* Possibility of remote inspection for entities in difficult-to-access areas. |
| Certification Validity | 3 years, with possibility of renewal for another 3 years | Same |
| Loss of Certification | Automatic loss in case of non-compliance with essential requirements:<br>* Philanthropic nature;<br>* Tax compliance;<br>* Effectiveness of philanthropic activities;<br>* Transparency of management. | Stricter criteria for loss of certification:<br>* Specification of conduct that could lead to loss of certification;<br>* Graduality in the application of sanctions;<br>* Possibility of defending the entity before losing certification. |
| Tax Immunity | Expansion of immunity for other social security contributions:<br>* PIS;<br>* COFINS;<br>* Employer INSS. | Maintenance of the expansion of Tax Immunity. |
| Requirements for Maintaining Immunity | Greater rigor and focus on effectiveness and Transparency:<br>* Annual presentation of activity reports and financial statements;<br>* Carrying out independent audits every 3 years;<br>* Proof of investment of resources in philanthropic activities. | More detailed and objective rules:<br>* Specification of deadlines for delivery of reports and statements;<br>* Definition of requirements for independent audits;<br>* Establishment of indicators to evaluate the application of resources. |
| Oversight | Competence shared between the Ministries of Health, Education and Citizenship:<br>* Each Ministry responsible for supervising entities in its sector of activity;<br>* Joint actions to combat fraud and tax evasion. | Maintenance of shared competence. |
| Penalties | Fine, loss of certification and suspension of Tax Immunity:<br>* Progressive fine value, according to the severity of the infraction;<br>* Suspension of immunity for up to 2 years in case of recurrence. | Clearer rules for applying penalties:<br>* Specification of fine amounts for each type of infraction;<br>* Definition of criteria for recidivism;<br>* Establishment of deadlines for settling outstanding issues before sanctions are applied. |
| Transitional Provisions | Deadlines for recertification of entities already certified by Law No. 12,101/2009:<br>* Entities with a high degree of risk: until 12/31/2024;<br>* Entities with a medium level of risk: until 12/31/2025;<br>* Entities with a low level of risk: until 12/31/2026. | Maintenance of deadlines for recertification. |
