O imposto sobre serviços e a problemática do seu aspecto espacial: um estudo à luz da LC 157/16

Abstract

The present monographic work has as its study the incidence of the Tax on Services - ISS, focusing on its spatial aspect, with a view to the principle of territoriality, also highlighting the changes occurred in several devices of LC 116/03, brought about by the advent of LC 157 / 2016. It should be noted that over the years the ISS has become the target of conflicts involving the legitimacy of its collection among municipalities, it is not uncommon to see cases in which two or more municipalities seek to tax the same generating facts, which is prohibited in the system national tax law, since the jurisdiction of a federated entity excludes the tax claim of any other. In addition, it has been that the general rule in taxes is its incidence within the territory of the entity in which the establishment is located, which also occurs in relation to the ISS, however, because of this is created a real legal boom involving the competence to collect the tax. There are divergent positions, on the one hand, there are those who sustain the demand due to the municipality where the service was actually rendered. In turn, antagonistic current holds the rule of the provider establishment as the competent place to demand the ISS. This imbroglio lasts and was not remedied even with the publication of Complementary Law 157/2016. It was intended to expose, throughout the work exposed here, the doctrinal and jurisprudential understanding related to this subject. It was found that, mainly, the service is considered to be provided and the tax due, at the place of establishment or, failing that, at the place where the provider is domiciled, the latter being pacified by the Superior Court of Justice (STJ). However, such positioning was not reiterated by the Federal Supreme Court (STF), since said LC 157 was suspended by means of an injunction and, by implication, any and all municipal legislation issued based on its criteria.