Mandado de Segurança: O Remédio Garantidor da Ordem Tributária e da Livre Iniciativa nas ILPI´s

Abstract

This article aims to demonstrate the negative tax impacts resulting from the imposition of paragraph 2, article 35, of Law 10.741 / 03 and, with that, to sustain its unconstitutionality and illegality under Administrative and Economic Law. In view of its harmful concrete effects on the economic activities of the Long Stay Institutions for the Elderly (LSIE), of a private nature, and also on the certification of the immunity from taxes provided for in the Constitution of 88, it appears that the Writ of Mandamus appears to be the skillful instrument for restoring order and justice in this sector. As a result of these notes, the application of the Social Assistance Beneficent Certificate (SABC), derived from Law 12.101 / 09, as well as the recent decisions on Direct Unconstitutionality Actions (DUI) judged by the Federal Supreme Court (FSC) will still be discussed the theme. At this point, it will be possible to perceive the existence of a contrast between the binding decisions of the Brazilian supreme court and the original constitutional rules. This causes, to a certain extent, a paradox in the hierarchy of norms and in the control of constitutionality, given that innovations in the legal world can only arise from the law in a strict sense. Thus, while free enterprise is the foundation of the Federative Republic of Brazil, ordinary rules seek to cool its economic potential and remove, in some cases, the tax immunity granted constitutionally to some institutions. However, to defend these threatened rights, the Citizen Charter itself provides constitutional guarantees such as the Writ of Mandamus, whose main scope is to protect the liquid and certain rights, not supported by habeas corpus or habeas data, violated by public authority or legal entity agent in the exercise of powers of the Public Power.