Non-profit organizations in Brazil are ruled by federal legislation (regarding the types, formation and general rules of taxation) and also by state and municipal legislations (mostly on specific rules for taxation). They can be defined as entities not created for economic purposes, but that can generate profits, which however cannot be distributed as dividends – all profits must be reinvested in their own activities.
The following are considered by the Brazilian federal legislation as non-profit organizations:
I. Associations (Article 53 of Brazilian Civil Code – BCC) and “OSCIP Associations” (Federal Law No. 9790/99);
II. Foundations (Article 62 of BCC);
III. Religious Organizations (Article 44, IV, § 1, of BCC);
IV. Political Parties (Article 44, V, § 3, of BCC).
As part of the “non-profit organizations”, there are the “third sector” organizations. The third sector in Brazil is formed by private non-profit organizations (except political parties) that can only perform activities that were supposed to be provided by the public sector such as educational, care, social assistance, environmental, health, cultural, scientific and other unmet needs for the well-being of civil society.
The officers and directors (or “managers”) of these types of entities are subject to civil liability, but the extent of such liability is different in each entity.
In foundations (which have no indirect owners), if the managers follow the by-laws and do not perform illegal acts, they shall not be personally liable for the foundation’s debts. In this sense, many Brazilian courts throughout the country have already decided to not apply the joint liability of managers (e.g. TRT 3rd Region – AP No. 735/1999, TRT 1st Region – Process 01385-1998-054-01-00-1, TRT 2nd Region – Process No. 0240900-09.2009.5.02.0046).
In associations, managers also should not be jointly liable for the association’s debts, however some judges in labor and tax cases frequently try to go after the personal assets of managers, especially if such managers are founders and in case the association is not capable of paying its outstanding debts, through a procedure called the ‘disregard of the legal entity’ (desconsideração da personalidade jurídica).
The case of religious organizations is a bit more complex. In theory, these entities have no indirect owners, but there are many tax judicial cases in Brazil whereby the courts performed the disregard of the legal entity of the church to go after the personal assets of the managers. In such cases, however, it was confirmed that the managers were also founders of the churches and were using the entity only to benefit from tax immunity.
So in most of the cases, the issues that define the extent of manager liability are (i) if the managers are founders or not, and (ii) if they used their position to lead the entity to perform legal activities or activities that are considered as abusive by the judicial and governmental authorities.
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Marcos Castro de Andrade Mello is associate at Pacheco Neto Sanden Teisseire Law Firm.