Isenção do imposto de renda sobre os benefícios de aposentadoria de portadores de moléstias graves: em busca de uma nova interpretação

Abstract

The law 7.713/88 lists in the sixth article, section XIV, a number of diseases that generate an exemption from income tax on the retirement benefits. The current understanding in the Brazilian legal system is by the non-expansion of diseases not mentioned in the law, in accordance with article 111 of the National Taxation Code, which states that every law which gives exemption should be interpreted literally. The main purpose of this monograph is to examine the possibility of expanding of the exemption article, within the current constitutional model of the Brazilian State. The aim is also to evaluate the necessity or not of symptomatic disease at the time of applying for exemption and linkage of administrative and judicial authority to the official medical report. The methodology used is bibliographic, theoretical, descriptive, exploratory and dialectic predominantly inductive. It was found that there is a possibility for expansion of the exemption article in order to preserve the existential minimum, the fundamental core principle of Human Dignity, applying mainly constitutional principles tributaries of Capacity Contributory, Non-Confiscation and Equality. It is also not necessary the manifestation of symptomatic disease as long as the individual demonstrating the need for ongoing medical monitoring and treatment. Finally, the official medical report binds only the administrative authority, but not the judge, which follows the principle of procedural Free Rational Persuasion.