Assistance Benefits in Brazil: Changes and Challenges to the Exercise of a Constitutional Right
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Municipal initiative and investment, together with federal financing. Biomedical conception; few intersectorial cooperation or monitoring or evaluation mechanisms. P6EM6 Home visits to clear up doubts and help children with homework. Especially those who are socially vulnerable. Based on personal initiative of a teacher in the municipality. Restricted to a specific group.
P1ASM1 Games workshops and theatre working on healthy eating with primary school children in 54 schools in different areas of the city, especially those which are more vulnerable. Municipal policy guarantees development of this practice. Limited to groups deemed vulnerable. Priority investment area for social policies. P3ASM2 Providing low cost balanced meat to families with food insecurity. Serving around people 5 days a week. Federal financing. Assistance limited to a specific group. No mechanisms to stimulate autonomy or social participation were observed.
P4ASM2 Community vegetable gardens involving 21 units in the municipality including schools, churches and health care services. High capillarity. No evidence of monitoring or evaluation mechanisms. Limited amplitude. P6ASM2 Action of 30 women living in vulnerable regions, identifying risk situations and intervening with individuals and communities, reducing situations of violence especially aimed at young people. Municipal investment regarding political induction. Restricted to a specific, vulnerable group of the population.
P7ASM2 Transport for special needs children in wheelchairs to health care and education services. P8ASM2 Educational workshops covering topics related to ageing and integration in a municipal center for the elderly. Small scale and no evidence of monitoring or evaluation mechanisms. P9ASM4 Physical activity and crafts, singing workshops and leisure afternoons with bingo and dancing for the elderly population in a municipal center for the elderly. Capillarity and municipal investment. P10ASM6 Activities of dance and music from different cultures, with approximately children and adolescents in situations of vulnerability caused by child labor.
Small scale and no evidence of intersectorial cooperation mechanisms. P1LM2 Sports and competition in three sports courts for municipal school age children, in particular those with social risk. No evidence of intersectorial cooperation or monitoring or evaluation mechanisms. P2LM2 Sports competition between public and private schools in the city with about 3, participants in activities that take place annually. Social mobilization and municipal investment.
P3LM4 Physical activities and arts and music workshops with children and adolescents at social risk. P4LM4 Work activities developed through physical activity in the workplace of a company. Based on the biomedical concept; restricted to a specific group. P1CM4 Physical activities, and talks with information on pregnancy and baby care for groups of six pregnant women in a highly vulnerable area of the municipality.
Based on an NGO initiative No government financing; small scale. P2CM6 Annual event for socializing with traditional recipes of the county and with the participation of approximately 1, people. Social mobilization, enhancement of autonomy and sense of belonging; municipal investment and supporting local culture. Open in a separate window. Footnotes The authors declare that there are no conflicts of interest.
Bardin L. Buss PM. Rev Bras Med Fam Comunidade. Buss PM, Pellegrini A. Cienc Saude Coletiva. Rev Panam Salud Publica. Junqueira LAP. Saude Soc. Epidemiol Serv Saude. Minayo MCS. Psicol Soc. Pedrosa JIS. Health promotion: concepts, principles and practice. Interface Comun Saude Educ. Rev Bras Enferm. Souza EM, Grundy E. Cad Saude Publica.
Physical activity and aerobic and anaerobic exercises for young people and adults in 48 gyms around the city. Capillarity and recognition of the population, federal funding. Physical activity in 26 public spaces in the city with aerobic and anaerobic exercises with audience predominantly comprised of seniors. Therapeutic workshops in music, theater and crafts favoring psychosocial rehabilitation of those with mental health problems in a Reference Center for Social Assistance.
Workshops in all municipal schools covering topics such as sexual and gender diversity, citizenship and health aspects along with overall comprehensive development. Workshops covering gender and sexual diversity inclusion in 14 in the municipality's high schools. Providing balanced meal in 23 municipal schools. Clinical and pedagogical appointments promoting inclusive education though caring for children with special needs in a municipal center. Home visits to clear up doubts and help children with homework. Games workshops and theatre working on healthy eating with primary school children in 54 schools in different areas of the city, especially those which are more vulnerable.
Providing low cost balanced meat to families with food insecurity. Community vegetable gardens involving 21 units in the municipality including schools, churches and health care services.
Action of 30 women living in vulnerable regions, identifying risk situations and intervening with individuals and communities, reducing situations of violence especially aimed at young people. Transport for special needs children in wheelchairs to health care and education services. The lawyer is indispensable to the administration of justice and is inviolable for his acts or manifestations in the exercise of his profession, within the limits of the law. The Public Legal Defense is an essential institution to the jurisdictional function of the State and is responsible for the judicial guidance and the defense, in all levels, of the needy, under the terms of article 5, LXXIV.
Sole paragraph - A supplementary law shall organize the Public Legal Defense of the Union, of the Federal District and the Territories and shall prescribe general rules for its organization in the states, into career offices filled, in the initial class, by means of a civil service entrance examination of tests and presentation of academic and professional credentials, with the guarantee of irremovability being ensured to its members and the practice of advocacy beyond the institutional attributions being forbidden.
The principle of article 37, XII, and article 39, paragraph I apply to the careers regulated in this title. The President of the Republic may, after hearing the Council of the Republic and the National Defense Council, decree a state of defense to preserve or to promptly re-establish, in specific and restricted locations, the public order or the social peace threatened by serious and imminent institutional instability or affected by major natural calamities. Paragraph 4 - Upon decreeing a state of defense or extension thereof, the President of the Republic shall, within twenty-four hours, submit the act with the respective justification to the National Congress, which shall decide by absolute majority.
Paragraph 5 - If the National Congress is in recess, it shall be called extraordinarily within five days. Paragraph 6 - The National Congress shall examine the decree within ten days as from receipt thereof, and shall remain in operation as long as the state of defense is in force Paragraph 7 - If the decree is rejected, the state of defense shall cease immediately. Sole paragraph - The President of the Republic shall, on requesting authorization to decree the state of siege or to extend it, submit the reasons that determine such request, and the National Congress shall decide by absolute majority.
The decree of the state of siege shall specify the period of its duration, the rules required to implement it and the constitutional guarantees that are to be suspended and, after it is published, the President of the Republic shall designate the executor of the specific measures and the areas encompassed. Paragraph 1 - In the event of article , I, the state of siege may not be decreed for more than thirty days nor may each extension exceed such period; in the event of item II, it may be decreed for the entire period of the war or foreign armed aggression.
Paragraph 2 - If authorization to decree the state of siege is requested during parliamentary recess, the President of the Federal Senate shall immediately summon an extraordinary session of the National Congress to convene within five days in order to examine the act. Paragraph 3 - The National Congress shall remain in session until the end of the coercive measures. Sole paragraph - The broadcasting of speeches made by Congressmen in their Legislative Houses is not included in the restrictions of item III, if authorized by the respective Directing Board.
The Directing Board of the National Congress shall, after hearing the party leaders, designate a Committee comprised of five of its members to monitor and supervise the implementation of the measures concerning the state of defense and the state of siege. Once the state of defense or the state of siege ceases, its effects shall also cease, without prejudice to liability for illicit acts performed by the executors or agents thereof.
Sole paragraph - As soon as the state of defense or the state of siege ceases, the measures applied during the period while it is in force shall be reported by the President of the Republic in a message to the National Congress, with specification and justification of the actions taken, with the listing of the names af those affected and indication of the restrictions applied.
The Armed Forces, comprised of the Navy, the Army and the Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and are intended for the defense of the Country, for the guarantee of the constitutional powers, and, on the initiative of any of these, of law and order. Paragraph 1 - A supplementary law shall establish the general rules to be adopted in the organization, training and use of the Armed Forces.
Paragraph 2 - Habeas-corpus shall not apply to military disciplinary punishments. Military service is compulsory as set forth by law. Paragraph 1 - It is within the competence of the Armed Forces, according to the law, to assign an alternative service to those who, in times of peace, after being enlisted, claim imperative of conscience, which shall be understood as originating in religious creed and philosophical or political belief, for exemption from essentially military activities.
Paragraph 2 - Women and clergymen are exempt from compulsory military service in times of peace, but are subject to other duties assigned to them by law. Paragraph 2 - The federal highway police are a permanent body structured into a career and intended, according to the law, to patrol ostensibly the federal highways. Paragraph 3 - The federal railway police are a permanent body structured into a career and intended, according to the law, to patrol ostensibly the federal railways.
Paragraph 4 - It is incumbent upon the civil police, directed by career police comissioners and except for the competence of the Union, to exercise the functions of criminal police and to investigate criminal offenses, with the exception of the military ones. Paragraph 5 - It is within the competence of the military polices the ostensive policing and the maintenance of the public order; it is incumbent upon the military fire brigades, in addition to the duties defined by law, to carry out activities of civil defense.
Paragraph 6 - The military polices and military fire brigades, ancillary forces and reserve of the Army, are subject, together with the civil police, to the Governors of the states, of the Federal District and of the territories Paragraph 7 - The law shall regulate the organization and operation of the agencies responsible for public security in such a manner as to guarantee the efficiency of their activities. Paragraph 8 - The municipalities may organize municipal guards to protect their property, services and facilities, as the law shall establish. Paragraph 1 - Whenever possible, taxes shall have an individual character and shall be graded according to the economic capacity of the taxpayer, and the tax administration may, especially to confer effectiveness upon such objectives, with due respect to individual rights and under the terms of the law, identify the property, the incomes and the economic activities of the taxpayer.
Paragraph 2 - Fees may not have the assessment basis reserved for taxes. In a federal territory, state taxes are within the competence of the Union and, if the territory is not divided into municipalities, also municipal taxes; municipal taxes are within the competence of the Federal District. Sole paragraph - The use of funds deriving from a compulsory loan shall be linked to the expense that justified the institution thereof.
The Union shall have the exclusive competence to institute social contributions regarding intervention in the economic order and the interest of categories of employees or employers, as an instrument of its activity in the respective areas, observing the provisions of articles , III, and , I and III, and without prejudice to the provisions of article , paragraph 6, as regards the contributions mentioned in the latter article.
Sole paragraph - The states, the Federal District and the municipalities may institute a contribution payable by their employees to fund social security and assistance systems for the benefit of the latter. Paragraph 2 - The prohibition set forth in item VII a, extends to the autonomous government agencies and to the foundations instituted and maintained by the Government, as regards the property, income and services related to their essential purposes or resulting therefrom.
Paragraph 3 - The prohibitions set forth in item VI, a, and in the preceding paragraph do not apply to the property, income and services related to the exploitation of economic activities governed by the regulations which apply to private undertakings, or in which users pay consideration or prices or tariffs. Paragraph 4 - The prohibitions set forth in item VI, subitems b and c encompass only the property, income and services related to the essential purposes of the entities mentioned therein.
Paragraph 5 - The law shall determine measures for consumers to be informed about taxes levied on goods and services. Paragraph 6 - Any subsidy or exemption, reduction of assessment basis concession of presumed credit, amnesty or remission, related to taxes, fees or contributions, may only be granted by means of a specific federal, state or municipal law, which provides exclusively for the above-enumerated matters or the corresponding tax, fee or contribution, without prejudice to the provisions of article , paragraph 2, item XII, g. Paragraph 7 - The law may impose upon the taxpayer the burden af the] payment of a tax or contribution.
The states, the Federal District and the municipalities are forbidden to establish a tax difference between goods and services of any nature, by reason of their origin or destination. Paragraph 4 - The tax established in item VI shall have its rates determined in such a manner as to discourage the retention of unproductive real property and shall not be levied on small tracts of land, as defined in law, when a proprietor who owns no other real property explores them by himself or with his family.
Paragraph 3 - With-the exception of the taxes mentioned in item II of the caption of the present article, and article , I and II, no other tribute may be levied on transactions concerning electric energy, telecomrnunications services, petroleum by-products, fuels and minerals of the country. Paragraph 1 - The tax set forth in item I may be progressive, under the terms of a municipal law, in order to ensure achievement of the social function of the property. Article l Paragraph 1 - For purposes of calculating the amount to be remitted in accordance with the provisions in item I, the portion of the collected tax on income and earnings of any nature assigned to the states, to the Federal District and to the municipalities shall be excluded, as provided by articles , I, and , I.
Paragraph 2 - No federated unit may be allocated a portion in excess of twenty per cent of the amount referred to in item II, and any excess shall be distributed among the other participants, maintaining, for the latter, the apportionment criterion established therein. Paragraph 3 - The states shall remit twenty-five per cent of the funds they may receive as provided by item II to the respective municipalities, observing the criteria established in article , sole paragraph, I and II.
It is forbidden to withhold or to make any restriction to the remittance and use of the funds assigned in this section to the states, to the Federal District and to the municipalities, including any tax additions and increases. Sole paragraph - The prohibition mentioned in the present article does not prevent the Union and the states from remitting the funds on condition of payment of their credits, including those of the autonomous government agencies.
Sole paragraph - The Federal Court of Accounts shall calculate the quotas referring to the participation funds mentioned in item II. The Union, the states, the Federal District and the municipalities shall announce, on or before the last day of the month following that of collection, the amounts of each of the tributes collected, the funds received. Sole paragraph - The data announced by the Union shall be discriminated by state and by municipality; those of the states, by municipality. The competence of the Union to issue currency shall be exercised exclusively bv the central bank. Paragraph 1 - It is forbidden for the central bank to grant, either directly or indirectly, loans to the National Treasury and to any body or agency which is not a financial institution.
Paragraph 2 - The central bank may purchase and sell bonds issued by the National Treasury, for the purpose of regulating the money supply or the interest rate. Paragraph 3 - The cash assets of the Union shall be deposited at the central bank, those of the states, of the Federal District, of the municipalities and of the bodies or agencies of the Government and of the companies controlled by the same, at official financial institutions, excepting the cases established in law. Paragraph l - The law which institutes the pluriannual plan shall establish, on a regional basis, the directives, objectives and targets of the federal public administration for the capital expenditures and other expenses resulting therefrom and for those regarding continuous programmes.
Paragraph 2 - The law of budgetary directives shall comprise the targets and priorities of the federal public administration, including the capital expenditures for the subsequent fiscal year, shall guide the drawing up of the annual budget law, shall make provisions for alterations in tax legislation and shall establish the investment policy for the official development financing agencies. Paragraph 3 - The Executive Power shall, within thirty days after the closing of each two-month period, publish a summarized report on budget implementation.
Paragraph 4 - The national, regional and sectorial plans and programmes set forth in this Constitution shall be drawn up in compliance with the pluriannual plan and shall be examined by the National Congress. Paragraph 7 - The functions of the budgets set forth in paragraph 5, 1 and 11, of the present article, compatible with the pluriannual plan, shall include the function of reducing interregional inequalities, according to populational criteria.
Paragraph 8 - The annual budget law shall not contain any provision extraneous to a forecast of revenues and to the establishment of expenses, such prohibition not including authorization to open supplementary credits and to contract credit transactions, even if by advance of revenues, under the terms of the law.
The bills regarding the pluriannual plan, the budgetary directives, the annual budget and the additional credits shall be examined by the two Houses of the National Congress, in accordance with their common regulations. Paragraph 2 - Amendments shall be submitted to the joint committee, which shall report on them. Paragraph 5 - The President of the Republic may send a message to the National Congress to propose modifications in the bills referred to in the present article as long as the joint committee has not started to vote on the part for which an alteration is being proposed.
Paragraph 6 - The bills of the pluriannual plan law, of the law of budgetary directives and of the annual budget law shall be forwarded by the President of the Republic to the National Congress, under the terms of the supplementary law referred to in article , paragraph 9.
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Paragraph 7 - The other rules regarding legislative procedure shall apply to the bills mentioned in this article, as long as they are not contrary to the provisions of this section. Paragraph 8 - Any funds which, as a result of a veto, amendment or rejection of the bill of the annual budget law, have no corresponding expenses, may be allocated, as the case may be, by means of special or supplementary credits, with prior and specific legislative authorization.
Paragraph 1 - No investment whose execution exceeds one fiscal year may be implemented without prior inclusion in the pluriannual plan, or without a law to authorize such inclusion, subject to crime of malversation. Paragraph 2 - Special and extraordinary credits shall be effective in the fiscal year in which they are authorized, unless the authorization act is enacted during the last four months of that fiscal year, in which case, reopened within the limits of their balances, such credits shall be incorporated into the budget of the subsequent fiscal year.
Paragraph 3 - The opening of extraordinary credit may only be allowed to meet unforeseeable and urgent expenses, such as those resulting from war, internal commotion or public calamity, observing the provisions in article Paragraph 4 - It is permitted to bind proper revenues generated by the taxes referred to in articles and and the funds mentioned in articles l57, and , I, a and b, and II, to the granting of a guarantee or a counterguarantee to the Union, and to the payment of debits owed to the same.
The funds corresponding to the budgetary allocations, including the supplementary and special credits, intended for the bodies of the Legislative and Judicial Powers and for the Public Prosecution, shall be remitted to them on or before the twentieth of each month, as provided by the supplementary law referred to in article paragraph 9. Expenditure with active and pensioned personnel of the Union, the states, the Federal District and the municipalities may not exceed the limits established in a supplementary law.
Sole paragraph - Free exercise of any economic activity is ensured to everyone, regardless of authorization from government agencies, except in the cases set forth bv law. The law shall regulate, based on national interests, the foreign capital investments, shall encourage reinvestments and shall regulate the remittance of profits.
With the exception of the cases set forth in this Constitution, the direct exploitation of an economic activity by the State shall only be allowed whenever needed to the imperative necessities of the national security or to a relevant collective interest, as defined by law.
Paragraph l - The public company, the mixed-capital company and other entities engaged in economic activities are subject to the specific legal system governing private companies, including labour and tax liabilities. Paragraph 2 - The public companies and the mixed-capital companies may not enjoy fiscal privileges which are not extended to companies of the private sector. Paragraph 3 - The law shall regulate the relationships of public companies with the State and society.
Paragraph 4 - The law shall repress the abuse of economic power that aims at the domination of markets, the elimination of competition and the arbitrary increase of profits. Paragraph 5 - The law shall, without prejudice to the individual liability of the managing officers of a legal entity, establish the liability of the latter, subjecting it to punishments compatible with its nature, for acts performed against the economic and financial order and against the citizens' monies. As the normative and regulating agent of the economic activity, the State shall, in the manner set forth by law, perform the functions of control, incentive and planning, the latter being binding for the public sector and indicative for the private sector.
Paragraph I - The law shall establish the guidelines and bases for planning of the balanced national development, which shall embody and make compatible the national and regional development plans. Paragraph 2 - The law shall support and encourage cooperative activity and other forms of association Paragraph 3 - The State shall favour the organization of the placer-mining activity in cooperatives, taking into account the protection of the environment and the social-economic furthering of the placer-miners. Paragraph 4 - The cooperatives referred to in the preceding paragraph shall have priority in obtaining authorization or grant for prospecting and mining of placer resources and deposits in the areas where they are operating and in those established in accordance with article 21, XXV, as set forth bv law.
It is incumbent upon the Government, as set forth by law, to provide public utility services, either directly or by concession or permission, which will always be through public bidding. Mineral deposits, under exploitation or not, and other mineral resources and the hydraulic energy potentials form, for the purpose of exploitation or use, a property separate from that of the soil and belong to the Union, the concessionaire being guaranteed the ownership of the mined product.
Paragraph I - The prospecting and mining of mineral resources and the utilization of the potentials mentioned in the caption of this article may only take place with authorization or concession by the Union, in the national interest, by Brazilians or by a company organized under Brazilian laws and having its head-office and management in Brazil, in the manner set forth bv law, which law shall establish specifi c conditions when such activities are to be conducted in the boundary zone or on Indian lands.
Paragraph 2 - The owner of the soil is ensured of participation in the results of the mining operation, in the manner and amount as the law shall establish. Paragraph 3 - Authorization for prospecting shall always be for a set period of time and the authorization and concession set forth in this article may not be assigned or transferred, either in full or in part, without the prior consent of the conceding authority.
Paragraph 4 - Exploitation of a renewable energy potential of small capacity shall not require an authorization or concession. Paragraph I - The Union may contract with state-owned or with private enterprises for the execution of the achvities provided for in items I through IV of this article, with due regard for the conditions set forth by law. Paragraph 3 - The law shall provide with respect to the transportation and use of radioactive materials within the national territory.
The law shall provide for the regulation of air, water and ground transportation, and it shall, in respect to the regulation of international transportation, comply with the agreements entered into by the Union, with due regard to the principle of reciprocity. Sole paragraph - In regulating water transportation, the law shall set forth the conditions in which the transportation of goods in coastal and internal navigation will be permitted to foreign vessels.
The Union, the states, the Federal District and the municipalities shall afford micro-enterprises and small enterprises, as defined by law, differentiated legal treatment, seeking to further them through simplification of their administration, tax, social security and credit obligations or through elimination or reduction thereof by means of law.
The Union, the states, the Federal District and the municipalities shall promote and further tourism as a factor of social and economic development. Compliance with request for a document or for information of commercial nature, made by a foreign administrative or judicial authority to an individual or legal entity residing or domiciled in the country shall depend upon authorization from the competent authority.
The urban development policy carried out by the municipal government, according to general guidelines set forth in the law, is aimed at ordaining the full development of the social functions of the city and ensuring the well-being of its inhabitants. Paragraph 1 - The master plan, approved by the City Council, which is compulsory for cities of over twenty thousand inhabitants, is the basic tool of the urban development and expansion policy.
Paragraph 2 - Urban property performs its social function when it meets the fundamental requirements for the ordainment of the city as set forth in the master plan. Paragraph 3 - Expropriation of urban property shall be made against prior and fair compensation in cash. An individual who possesses an urban area of up to two ,hundred and fifty square meters, for five years, without interruption or opposition, using it as his or as his family's home, shall acquire domain of it, provided that he does not own any other urban or rural property. Paragraph 1 - The deed of domain and concession of use shall be granted to the man or woman, or both, regardless of their marital status.
Paragraph 2 - This right shall not be recognized for the same holder more than once. Paragraph 3 - Public real estate shall not be acquired by prescription. It is within the power of the Union to expropriate on account of social interest, for purposes of agrarian reform, the rural property which is not performing its social function, against prior and fair compensation in agrarian debt bonds with a clause providing for maintenance of the real value, redeemable within a period of up to twenty years computed as from the second year of issue, and the use of which shall be defined in the law.
Paragraph I - Useful and necessary improvements shall be compensated in cash. Paragraph 2 - The decree declaring the property as being of social interest for agrarian reform purposes empowers the Union to start expropriation action. Paragraph 3 - It is incumbent upon a supplementary law to establish special summary adversary proceeding for expropriation action.
Paragraph 4 - The budget shall determine each year the total volume of agrarian debt bonds, as well as the total amount of funds to meet the agrarian reform programme in the fiscal year. Paragraph 5 - The transactions of transfer of property expropriated for agrarian reform purposes are exempt from federal, state and municipal taxes. Sole paragraph - The law shall guarantee special treatment for the productive property and shall establish rules for the fulfilment of the requirements regarding its social function.
The social function is. Paragraph 1 - Agricultural planning includes agroindustrial, stock raising, fishing and forestry activities. Paragraph 2 - Agricultural policy and agrarian reform actions shall be made compatible. The destination given to public and unoccupied lands shall be made compatible with the agricultural policy and the national agrarian reform plan. Paragraph l - The alienation or concession in any way of public lands with an area of more than two thousand and five hundred hectares to an individual or legal entity, even if through an intermediary, shall depend on the prior approval of the National Congress.
Paragraph 2 - Alienations or concessions of public lands for agrarian reform purposes are excluded from the provisions of the preceding paragraPh. The beneficiaries of distribution of rural land through agrarian reform shall receive title-deeds or concession of use which may not be transacted for a period of ten years. Sole paragraph - The title-deed and the concession of use shall be granted to the man or the woman, or to both, irrespective of their marital status, according to the terms and conditions set forth by law.
The law shall regulate and limit the acquisition or lease of rural property by a foreign individual or legal entity, and shall establish the cases that shall depend on authorization by the National Congress. The individual who, not being the owner of rural or urban property, holds as his own, for five uninterrupted years, without opposition, an area of land in the rural zone, not exceeding fifty hectares, making it productive with his labour or that of his family, and having his dwelling thereon, shall acquire ownership of the land. Sole paragraph - The public real estate shall not be acquired by prescription.
Paragraph 1 - The authorization referred to in items I and 1I shall be non- negotiable and non-transferable, it being allowed the transfer of control of the incumbent legal entity, and shall be granted, free of charge, according to the national financial system law, to a legal entity whose directors are technically capable and of spotless reputation and which proves that its economic capacity is compatible with the undertaking.
Paragraph 2 - The financial resources relating to regional programmes and projects under the responsibility of the Union shall be deposited at their regional credit institutions and invested by them. Paragraph 3 - Real interest rates, including commissions and any other compensation directly or indirectly related to the concession of credit, shall not exceed twelve percent per annum; charges above this limit shall be considered crime of usury, which shall be punished in all of its forms, as the law shall determine.
The social order is based OIl the primacy of work and aimed at social well-being and justice. Social welfare comprises an integrated whole of actions initiated by the Government and by society, with the purpose of ensuring the rights to health, social security and assistance. Sole paragraph - It is incumbent upon the Government, as provided by law. Paragraph 1 - The revenues of the states, the Federal District and the municipalities allotted to social welfare shall be included in the respective budgets, not being part of the budget of the Union.
Paragraph 2 - The proposal for the social welfare budget shall be drawn up jointly by the agencies responsible for health, social security and social assistance, in accordance with the goals and priorities established in the law of budgetary directives, ensuring each area of the management of its funds.
Paragraph 3 - A legal entity indebted to the social welfare system, as established in law, may not contract with the Government nor receive benefits or fiscal or credit incentives therefrom. Paragraph 4 - The law may institute other sources intended to guarantee the maintenance or expansion of social welfare, with due regard to the provisions of article , I. Paragraph 5 - No social welfare benefit or service may be created, increased or extended without a corresponding source of full funding. Paragraph 6 - The social contributions referred to in this article may only be collected ninety days after the publication of the law which instituted or modified them, the provisions of article , III, b, not applying thereto.
Paragraph 7 - Benevolent entities of social assistance which meet the requirements established in law shall be exempt from contribution to social welfare. Paragraph 8 - Rural producers, sharecroppers and tenant farmers, placer miners and self-employed fishermen, as well as their spouses, who exercise their activities within a household system and without permanent employees shall contribute to social welfare by applying a rate to the proceeds from the sale of their production and shall be entitled to the benefits provided by law. Health is a right of all and a duty of the State and shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at the universal and equal access to actions and serv ices for its promotion, protection and recovery.
Health actions and services are of public importance, and it is incumbent upon the Government to provide, in accordance with the law? Sole paragraph - The unified health system shall be financed, as set forth in article , with funds from the social welfare budget of the Union, the states, the Federal District and the municipalities, as well as from other sources. Health assistance is open to private enterprise. Paragraph 1 - Private institutions may participate in a supplementary manner in the unified health system, in accordance with the directives established by the latter, by means of public law contracts or agreements, preference being given to philanthropic and non-profit entities.
Paragraph 2 - The allocation of public funds to aid or subsidize profit- oriented private institutions is forbidden. Paragraph 3 - Direct or indirect participation of foreign companies or capital in heath assistance in the country is forbidden, except in cases provided by law. Paragraph 4 - The law shall provide for the conditions and requirements which facilitate the removal of organs, tissues and human substances for the purpose of transplants, research and treatment, as well as the collection, processing and transfusion of blood and its by-products, all kinds of sale being forbidden.
Paragraph I - Any person may receive social security benefits, upon contributions, as established in the social security plans. Paragraph 2 - Adjustment of the benefits is ensured, to the end that its real value is permanently maintained, in accordance with criteria defined by law. Paragraph 3 - All contribution salaries included in the calculation of the benefit shall suffer monetary correction.
Paragraph 4 - The amounts habitually earned by an employee, on any account, shall be incorporated into the salary for purposes of security contribution and the resulting effects on benefits, in the cases and in the manner provided by law. Paragraph 5 - No benefit which replaces the contribution salary or work earnings of the insured shall have a monthly value lower than the minimum wage. Paragraph 6 - The Christmas bonus for the retired and pensioners shall be based on the value of the earnings in the month of December of each year. Paragraph 7 - Social security shall maintain a collective insurance, of a complementary and optional nature, funded by additional contributions.
Paragraph 8 - Any subsidy or aid from Government to profit-oriented private security entities are forbidden. Paragraph 1 - Proportional retirement shall be allowed, after thirty years of work for men and twenty-five years for women. Paragraph 2 - For purposes of retirement, the reciprocal computation of the period of contribution in public administration and in private activity, either rural or urban, shall be ensured, in which case the various social security systems shall compensate each other financially, in accordance with criteria established by law.
Social assistance shall be rendered to whomever may need it.
Education, which is the right of all and duty of the State and of the family, shall be promoted and fostered with the cooperation of society, with a view to the full development of the person, his preparation for the exercise of citizenship and his qualification for work Article The universities shall have didactic, scientific, administrative, financial and property management autonomy and shall comply with the principle of non-dissociation of teaching, research and extension Paragraph I - The universities are permitted to hire foreign professors, technicians and scientists as provided by law.
Paragraph 2 - The provisions of this article apply to scientific and technological research institutions. Share purchase agreements or quota purchase agreements, for limitadas must be governed by Brazilian law. Branches and subsidiaries. These are used by many foreign companies. Branch offices are an extension of the foreign company that is allowed to conduct business in Brazil, but they require federal government approval. Some regulated activities, such as airline companies, can only operate in Brazil through a branch.
These relationships are generally confined to specific contractual terms, which dictate the scope of the services to be provided, compensation, and other provisions, but do not create any formal presence in Brazil. Foreign companies that want to have their products manufactured locally in Brazil or authorise a Brazilian entity to use, manufacture, or distribute its goods, services, or proprietary information, will typically enter into a licensing agreement, a technology transfer agreement, or another similar contractual arrangement.
Joint ventures. Joint ventures between a foreign investor and a Brazilian counterpart are used to enter the Brazilian market in co-operation with a local partner. As in other jurisdictions, joint ventures can be either contractual commitments or embodied in a shareholders' agreement governing a joint venture entity, typically either a limitada or an SA. What are the circumstances under which a business becomes liable to pay tax in your jurisdiction?
Foreign companies are subject to withholding income tax when providing services to Brazilian customers individuals or legal entities. Brazilian tax legislation does not provide a definition of "permanent establishment". However, according to the Brazilian Civil Code, an establishment is an organised "complex of assets connected for a corporate purpose" Article , Civil Code. Even without a clear definition in Brazilian legislation, a permanent establishment will likely be found when:.
An entity is productive, with a fixed presence, maintaining facilities and turning a profit. An entity can enter into contracts through agents or representatives in Brazil, perform sales activities and submit invoices directly to a Brazilian buyer. What are the main business tax rates? The main federal taxes include:. The company can credit some costs foreseen on legislation.
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Economic intervention contribution CIDE. The CIDE is levied on remittances made overseas for licences of use or acquisition of technological knowledge, plus technology transfer, technical and management assistance services, and royalties. Import duty is payable at customs on an ad valorem basis. The rate varies, depending on the type of product imported. Federal excise tax IPI. This is levied on manufactured products as they leave the plant, or when they are imported and resold.
IPI rates vary depending on whether the product is considered to be essential or not. IPI also permits offset of credits paid on previous operations because it is a non-cumulative tax. Tax on financial transactions IOF. This is levied on transactions involving credit, currency exchange, insurance and securities trading. As a regulatory tax, IOF rates can be raised and lowered by the executive branch at any moment, with immediate application, within the parameters set by law.
State sales and services tax ICMS. ICMS is levied on the sale of goods, the import of products into Brazil, certain communication services and intra and interstate transportation services. ICMS rates vary from state to state and depend on the type of transaction for example, intra or interstate sale of goods, communication or transportation services. It is a non-cumulative tax.
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Vehicle tax IPVA. This is applied on the ownership of automotive vehicles and is levied annually on the value of the vehicle. This is levied on the transfer of title of real estate or movable property on inheritance or through donation. Services tax ISS. This is levied on specific services. Tax on the transfer of real estate. This is levied on the transfer of real estate between living persons. Rates are progressive and vary from municipality to municipality according to the value of the property.
Urban property tax IPTU.
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This is levied annually on the assessed value of urban real estate. Rates vary from municipality to municipality. What is the tax treatment in your jurisdiction of profits from an investee company remitted outside your jurisdiction by an investor? Brazilian limited liability companies can distribute accrued profits to their partners who are entitled to participate in it on a pro rata basis, unless the articles of association determine otherwise that is, disproportional distribution of profits.
Dividends can be remitted abroad immediately after the:. Preparation of the relevant balance sheet. Execution and filing for registration of the minutes from the partners' meeting authorising the distribution of profits in accordance with the profits reflected in the relevant balance sheet. Following these procedures, payment can be made through a wire transfer agreed on with a commercial bank. There are no restrictions on the number of times a company can distribute profits to its partners. Distributions of profits and dividends can be remitted abroad without restriction.
The distribution of profits and dividends generated after 1 January is exempt from income tax withheld at source. Although a financial transactions tax will be levied on the exchange, the tax rate levied on dividends and interest on equity remittances for non-residents is zero. However, if the minimum average term exceeds this period, tax will be levied at zero rate. The minimum average term corresponds to the weighted average of the instalments that amortise the principal, using as weight the maturity of each instalment.
The deductibility of interest in inter-company loans is limited by transfer pricing and thin-capitalisation rules the general level of indebtedness with related parties or with parties based in low tax jurisdictions. The loan is demonstrably necessary for the borrower's activities.
At the time the interest is due, the following requirements are observed:. The aggregate of all debts held by the Brazilian entity with related foreign parties cannot be higher than double the amount of the equity interest that all the parties hold in the Brazilian company. Also, deductibility in this case requires that:. The lender has substance. The beneficial owner of the interest is identified. It is evidenced that the loan agreement has brought about an actual transfer of funds. Incentives What tax incentive or other schemes exist to encourage foreign investment?
Tax incentives are granted to Brazilian companies. Therefore, if a foreign investor incorporates a subsidiary or a branch in Brazil, there is no difference in the tax incentive granted to a foreign or local investor. The companies entitled to benefit from the Manaus Free Trade Zone have the following tax incentives:. The federal government provides a tax reduction or exemption on construction, expansion, modernisation or diversification projects in industries considered to be priorities for regional development in the areas covered by the former SUDAM and SUDENE. The reductions and exemptions include:.
The REIDI's tax incentive suspends PIS and COFINS on the sale or import of new machines, instruments and equipment, construction materials and some services, used or incorporated in infrastructure projects in the transport, port, energy, basic sanitation and irrigation industries. Investment guarantees. What is your government's track record in this regard? Legal guarantees against expropriation are provided for in Article 5 of the Constitution, which contains the due process clause.
This constitutional guarantee affirms that an individual can only be stripped of freedom or have rights and assets restricted by legal process if ordered by the judiciary after a full and robust defence. Expropriation of private property is not taken lightly and requires a series of conditions to be fulfilled, protecting property rights and guaranteeing fair compensation for the expropriated owner of the property, including:.
Fair restitution, in money, enough to compensate the owner of the private property. Demonstration of the real social and public interest and the real necessity for the expropriation. During this process, the court analyses the social purpose of the private property, so that the expropriation of unproductive properties will be undertaken before property that generates jobs and income. Where expropriation is necessary, compensation must aim to minimise the owner's loss.
Compensation is due even in cases where the expropriated property is unproductive and was expropriated for land reformation. Recent discussions on the matter in the Brazilian courts revolved around the amount of compensation typically arbitrated as fair value. Are there any issues in relation to the enforcement of intellectual property rights? Brazil recognises intellectual property as a constitutional right, in line with the international treaties that it has ratified, including:. The Copyright Act governs authors' rights and rights connected to artistic, literary, and scientific works.
Ideas, methods and mere findings are excluded from copyright protection. To protect an artistic, literary, or scientific work under Brazilian law, it must be original so that its owner can be awarded temporary exclusivity for the economic exploitation of the work, in addition to the author's moral rights. Proprietary rights are valid, as a rule, for 70 years from 1 January of the year after the author's death. The author is the individual who creates the work, who may or may not be confused with the holder of the copyright when there is a transfer of rights for commercial exploitation of the work.
Only proprietary rights can be transferred. Moral rights to claim authorship of the work, keep the work unpublished, defend the integrity of the work, and defend it against changes that denigrate the author's honour or reputation, are inalienable. Performers, phonogram producers, and broadcasters also are given special protection in the Copyright Act. The same protection is granted to nationals and persons residing in countries that ensure reciprocity to Brazilians on protection of copyright or equivalent rights.
Unlike industrial property rights, copyright arises with the creation and externalisation of the work and does not need to be registered for the owner to enjoy the rights in Brazil. However, registering the work is recommended. A trade mark registered with the National Industrial Property Institute INPI gives its owner the exclusive right to use the sign in the Brazilian market in its field of activity for ten years from the date of registration, renewable for successive periods.
The registration term expires and is not renewed. There is a total or partial waiver of the goods or services indicated by the trade mark. Where a representative is domiciled abroad, and therefore there is no duly qualified representative domiciled in Brazil. Highly reputed famous and well-known trade marks have special protection by the Industrial Property Law. When declared by INPI to be a highly reputed trade mark, exclusive use of the sign is guaranteed in all fields of activity.
A well-known trade mark within its field of activity enjoys special protection, regardless of whether it has already been registered in Brazil. Patents Under the Industrial Property Law, a patent consists of the temporary ownership of an invention granted by the state to its inventor or right holder. Inventions and utility models may be subject to patent registration in Brazil. An invention must involve inventive activity, industrial application, and novelty on a worldwide basis.
A utility model is an object of practical use that meets the requirements of inventive act, industrial application in a new form, or functional arrangement and improvement through its use or manufacture. Inventions are granted protection for 20 years, and utility models are protected for 15 years, both counted from the date the application for registration is filed with the INPI.
Once granted, a patent gives its owner the right to prevent third parties from performing acts that violate its exclusive right nationwide, including the right to prevent third parties from producing, using, offering for sale, selling, or importing the patented product or process or a product directly obtained through a patented process. The Industrial Property Law also provides protection to industrial designs, meaning all ornamental plastic forms of an object, or its lines and colours, that provide a new and unique visual effect to a product submitted for industrial application.
The right holder is granted the exclusive right to exploit the industrial design in Brazil for ten years from the date of the application, renewable for three successive five-year terms.