By Jorge Sukarie, Chairman of the ABES Board
Behind the scenes of the enactment of a Law:
which is not always known to the taxpayer
which is not always known to the taxpayer
This article is a compliment to democracy, the Legislative process, the role of the Executive and associativism, which, signaling problems that went unnoticed by the legislator, benefits not only the associates, but society as a whole, from the consumer who ends up paying less for service, to the judiciary, already overwhelmed, which would receive thousands of new cases to judge.
His inspiration was the recent case when the Federal Senate approved on December 15, 2016, SCD No. 15, 2015, replacing PLS No. 386, 2012, introducing changes in Complementary Law No. 116/03 which provides for the Tax on Services of Any Nature, with the objective of ensuring compliance with the constitutional floor of 2% established for the collection of ISS and, thus, seeking to end the fiscal war between the municipalities.
Abes and the other representative entities of the sector have closely followed the development of this bill, since its authorship in 2012, participating in public hearings, debates, meetings with the assistance of parliamentarians. Always with the intention of contributing with suggestions for the improvement of the text, still under discussion at that time.
However, we were surprised last December 16 with the final wording of the law passed in the Senate that went to presidential sanction. It contained the maintenance of two devices that would have a very negative impact on the business environment in Brazil.
The first of them concerns the inversion of the attribution of the competence to charge ISS from the provider's municipality to that of the service borrower when there was a breach of the 2% minimum rate rule by the original taxing entity.
The second, and even more perverse, provision of “tax substitution” authorizes municipalities to assign responsibility for tax credit to a third person, making them obliged to fully pay the tax due, fine and legal additions, regardless of whether it has been effected. withholding tax.
In a nutshell, this means that all legal entities that take over services (companies, foundations, autarchies, class entities, etc.), even if immune or exempt, would be required to know the ISS legislation of any of the current 5,570 Brazilian municipalities. in which their service providers maintain establishments. And, further, to interpret these municipal rules, in order to conclude if they violate the rules that determine that the ISS will not have a rate lower than 2%, and if it is the case, withhold it at source and collect the tax, under the risk of becoming directly responsible. for collecting it.
The Brazilian Association of Software Companies (Abes), the Federation of Associations of Brazilian Information Technology Companies (Assespro) and the Brazilian Association of Information and Communication Technology Companies (Brasscom) recognize the importance and defend measures that eliminate or reduce federative conflicts, as well as reiterate their support for changes in legislation that harmonize the legitimate aspirations of public authorities in the three federative spheres, especially in Brazilian municipalities. The entities understand the importance of improving the business environment through clear tax rules that bring greater legal certainty to private enterprises, which are essential for the country's social, economic and technological development.
However, it is clear how difficult, not to say unenforceable, this task would be for any company, regardless of its size. In addition to this obligation, carrying out this task enhances the practice of double taxation, since it would stimulate conflict of understanding between municipalities.
Legal uncertainty would force the appeal to the Judiciary, which is already completely besieged by tax issues and many companies would prefer to pay taxes in both municipalities, causing an increase in the cost of the service for the final consumer.
Again, these entities mobilized and took advantage of a meeting previously scheduled by Abes at the Civil House, on December 22, on the eve of Christmas, where the meeting began with the request for an inversion of the agenda to bring to the discussion a manifesto signed by Abes, Assespro and Brasscom, signaling the problems and requesting the veto of the two devices mentioned above.
It was pleasant to note, on December 30, when Supplementary Law 157 was published, that the problems signaled were understood by the organs of the Executive and the vetoes requested by the sector, were all accepted by the Presidency of the Republic.
It is important to remember that these vetoes did not create any benefit to taxpayers, but they prevented a harmful situation from occurring in the country in order to create yet another accessory obligation for companies, which would also assume responsibility for inspection, and would create unprecedented legal uncertainty.
We can affirm that the achievements over Abes' last 30 years of operation, brought much more positive results and that contributed to the drafting of laws that do not harm the society and the business environment of Brazil, than in the production of laws that have brought specific benefits to our sector.
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