When “profit” becomes salary: CARF and the limits of tax planning for medical clinics.
In the case analyzed, the Brazilian Federal Revenue (Receita Federal) issued a tax assessment to demand social security contributions incident on amounts paid to doctors under the heading of “profit distribution,” based on Art. 22, III, of Law No. 8,212/1991, combined with Art. 28, III, of the same law, which defines the contribution-salary as the remuneration paid to an individual taxpayer by reason of the work performed. The audit demonstrated, in a meticulous manner, that the distributed amounts had a direct relationship with medical shift schedules, being calculated based on an hourly rate, regardless of the existence of accrued profit, formal corporate deliberation, or monthly/interim balance sheets that could legally justify the advance distribution of results.
The CARF (Administrative Council of Tax Appeals) analysis confirmed that the payments did not possess the nature of remuneration on capital, but rather of consideration for the work effectively performed. It was evidenced, furthermore, that doctors who were not even members of the corporate structure at the time received amounts classified as “profits,” which, by itself, dismisses any possibility of legitimate classification as a distribution of corporate results. As the leading vote highlighted, it is not legally possible to distribute profits — even in the form of an advance — to those who do not participate in the articles of incorporation, since the concept of profit presupposes corporate participation and the determination of results.
Another central point addressed in the appellate decision concerns the allegation that the articles of incorporation authorized the distribution of profits disproportionately to the capital participation. CARF recognized, in theory, that the legislation allows for disproportionate distribution, including in simple societies, provided there is a clear and specific contractual clause indicating the adopted criterion objectively. However, it emphasized that a simple generic provision stating that profits “shall have the destination indicated by the partners” does not satisfy this requirement, nor does it authorize the administration to freely define criteria based on productivity or hours worked. The absence of an express clause, deliberative minutes, and minimum corporate documentation completely weakened the defensive thesis.
From an accounting perspective, the appellate decision reinforced the well-established understanding that, even under the Presumed Profit (Lucro Presumido) regime, the tax and social security exemption on profit distributions exceeding the presumed amount depends on the existence of regular accounting records, prepared in accordance with commercial legislation. In this specific case, the audit found relevant inconsistencies, such as generic entries for “profit distribution” without identifying the beneficiary and the absence of monthly balance sheets to support the alleged advance distribution of results. These failures precluded the recognition of the intended social security exemption.
CARF also upheld the joint and several liability of the partner who benefited from the payments, based on Art. 124, I, of the National Tax Code, by recognizing the existence of a common interest in the situation that gave rise to the taxable event. Even though the doctor did not exercise a management function, it was established that he benefited directly from the undue classification of the amounts as exempt income—even declaring them as such in his Individual Income Tax Adjustment Return—thereby avoiding IRPF and social security contributions.
The decision makes it clear that tax planning in medical clinics cannot dispense with legal, accounting, and corporate rigor. Remuneration linked to shifts, productivity, or hourly workload, even if disguised as “profit,” tends to be reclassified as a contribution-salary when there is no effective determination of results, formal deliberation, and adequate contractual backing. Starting in 2026, with the new profit taxation regime and the increase in automated data cross-referencing by the Federal Revenue Service, fragile or merely formal structures tend to be questioned even further.
CARF's message is more than a simple warning; it is a confirmation that certain irregularities or “guises” will no longer be accepted! Without regular accounting,
without corporate governance, and without legally defensible criteria, what is intended as tax savings can quickly turn into a high-impact social security tax assessment.