A incidência do ISS sobre as atividades de franquia ou franchising: uma análise do conceito de serviço à luz da decisão do STF no Recurso Extraordinário nº 603.136/2020

Abstract

Due to the judgment of Extraordinary Appeal n.º 603. 136, the constitutionality of the Tax on Services of Any Nature (ISS) was declared in the activities of franchising or franchising, however, such position generated surprise to scholars of the subject, since, in a majority, It was believed that the Tax on Services of Any Nature (ISS) could only be levied on activities that were in accordance with the constitutional concept of "service", which in short, should consist of an obligation "to do", and, being the franchise a contract of a mixed nature, which involves different obligations, in particular, obligation "to give", there could be no incidence of the tax. Based on that, the present work sought to make an analysis of the constructions of the constitutional concept of service, and their application to the franchise, through the study of the favorable and opposite positions to the incidence of the tax, and from that, analyze the congruence or not of the arguments exposed in the decision of the appeal. The thematic relevance comes due to the new position adopted by the Federal Supreme Court with the judgment of the matter, especially because it represents the taxation of one of the most profitable activities in the national scenario. For this, the hypothetical-deductive methodology based on bibliographic research was used, through doctrine, laws, precedents and academic productions. First, there was the analysis of the general characteristics of the Tax on Services of Any Kind (ISS), soon after, the meaning of the various meanings given to the term "service", proceeded, the study of the legal nature of franchise agreements, and the dichotomy of arguments about the incidence of this tax on these activities; finally, there was the analysis of the context of the decision, its ratio decidendi and the other arguments that were used. As a result, jurisprudence has repeatedly stated that the concept of "service" should not be restricted to a simple "to do" obligation, equally, that in the franchise contract there is no predominance of one obligation for another, being a single and hybrid contract. In fact, the research understood for feasibility and validity of the points exposed in the decision.