For ABES, Assespro and Brasscom, approval violates the principle of division of powers, violates constitutional limits and brings legal uncertainty
The National Congress approved changes to Complementary Law No. 116/03, which deals with the Tax on Services of Any Nature. Among the changes is the inclusion of the new paragraph 4 to art. 3, creating the possibility of changing the ISS tax jurisdiction from the place of establishment of the service provider to the place of establishment of the borrower. This will occur, according to the approved law, in the event that the municipality that holds the original jurisdiction fails to respect the minimum rate of 2%, or changes the tax calculation basis so that the effective rate is lower than the aforementioned percentage. This and other changes represent the legislator’s effort to settle or at least “mitigate the fiscal war between federated entities”, re-establishing the principle of “equality between ISS taxing entities”, as justified by Senator Romero Jucá (PMDB/RR) , author of the project.
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 the measures that eliminate or reduce federative conflicts. However, the veto of paragraph 4 of art. 3 in the wording approved by the National Congress, as well as the veto of item III of 2 of art. 6, which has the same scope and makes reference to the previous provision (ie, to the same § 4 of article 3 of this Complementary Law 116/03 to which we requested the veto).
If a law like this is approved, according to the statement, it violates the principle of division of powers by wrongly delegating to the private sector the role of monitoring compliance with legislation by the municipal public administrator, violating the constitutional limits assigned to the complementary legislator and brings legal uncertainty. "The rule approved by Congress represents a setback in the search for tax simplification, cost reduction in favor of national productivity and, even more, it harms the development of digital and innovative businesses", says a statement, which can be seen in full. on here and that will be among the senators.
Finally, it should be noted that the amendment approved by the National Congress has the potential to repeat, this time in the services sector, the economic damage caused to e-commerce companies when establishing guidelines for the collection of ICMS on interstate transactions of and -commerce. The change promoted by Confaz was questioned by the OAB with the STF in ADI 5,464, and Minister Dias Toffoli granted an injunction to suspend the effectiveness of the clause of the Confaz agreement. According to the minister, in addition to invading the field of complementary law, the Confaz agreement presented a risk of damage to businesses with loss of competitiveness and even possible cessation of economic activities.
The entities consider that the norm approved by the National Congress represents a setback in the search for tax simplification, cost reduction in favor of national productivity and, even more, it harms the development of digital and innovative businesses, adding yet another burden to the competitiveness of the Brazilian economy such as a whole, which is why the request for the veto of § 4 of art. 3 of Senate Bill No. 386/12, as well as item III of § 2 of art. 6, according to the reasons mentioned above.
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