Considerations about the Location of Service Tax Collection and the Analysis of Judicial Review of Supplementary Law n. 157/2016

Abstract

This article aims to propose general considerations about the spatial aspect of the ISS (service tax) in Brazil regarding the Supplementary Law n. 157/2016, which altered the location of tax collection for several services listed on the Supplementary Law n. 116/2003. In this sense, Congress’ choice to endorse “destination criterion” for the services 4.22, 4.23, 5.09, 10.04, 15.01 e 15.09 was considered constitutional, attributing to the municipality where the service taker is domiciled the competence to tax. In this context, the arguments presented in the ADI n. 5.835/DF were faced respecting the constitutional structure of the service tax in Brazil and the “principle of territoriality”, the impact of the amendments on the fiscal competition among the Municipalities and the relations between the principle of legality and the uncertainty of language. Thus, it remains clarified that the Constitution has the primary function of fixing the materiality of the tax, being the spatial aspect of the tax delegated to the infraconstitutional legislator. Furthermore, it was also concluded that the use of indeterminate concepts is not incompatible with the principle of tipicity. In such manner, eventual inaccuracy of the text of Supplementary Law n. 157/2016 is not in the field of unconstitutionality, but of the conformation of possible meanings of language.