Imposto sobre serviços de qualquer natureza: um estudo de caso para definir a competência de sua instituição

Abstract

The thematic of this research work is to point out a lack of consistency as regards the authentic, doctrinaire or jurisprudential interpretation, generating one the most conflicting themes between legislation and case law with the specific purpose of defining the place (City) with competence to institute the tax levy and the respective requirement of the Services Tax. Such tax is of constitutional competence of the cities, as determined by the Brazilian Federal Constitution of 1988 in its Article 156, item III, having as taxable event the provision, by a company or self-employed professional, with or without fixed establishment, of services contained in the List of Services instituted by Supplementary Law 56, of December 15, 1987, which list is attached to Decree-Law No. 406/68, of December 31, 1968, revoked and with current wording given by Supplementary Law 116, of July 31, 2003. The conflicts of interests of the cities, basically, arise and are engendered by means of tax incentives, like the cases of calculation basis decrease, virtual offices, facts characterized in the laws of the Cities of Barueri, Poá and Santana de Parnaíba, which are cities close to the City of São Paulo. The defenders of the infraconstitutional laws of the three first cities prefer to say that they are not “tax benefits”, but only the “non-incidence of the cumulative effect” of federal taxes to the non-inclusion in the calculation basis of the Services Tax. On the other side, the City of São Paulo, considering itself impaired by the abovementioned municipal laws, since it is the City that most receives the services provided by the companies that are established in those cities, created the CPOM (Register of Service Providers of Other Cities), with the purpose of verifying whether they really are service provision establishments or merely fictitious addresses only with the intention of searching a lower tax rate payable. This accessory obligation, imposed by the City of São Paulo, with the companies registered in its territory, according to its masterminds, is an attempt to diminish or preclude, as much as possible, the tax evasion that gives rise to the “Tax War”.