House approves final text of bill that alters ISS taxation

In the list of services that will be taxed, there is the availability of an application on an electronic page, such as Netflix

The Chamber of Deputies concluded last Wednesday (September 16) the vote on the bill that, to avoid the so-called "fiscal war", prohibits municipalities from granting tax exemption on any kind of service (ISS). The minimum rate is fixed at 9% and the maximum rate is set at 2%.

The text also changes the list of items taxed by the Service Tax (ISS), which generated friction with state governments. States argued that some items should be taxed by the Tax on Circulation of Goods and Services (ICMS), and not by the ISS. The clash between the federal entities took place mainly in new internet and communications services. The last list of taxable items, approved in 2003, does not include internet services. According to the report's rapporteur, Deputy Walter Ihoshi (PSD-SP), this debate was pacified.


Source: Correio Braziliense website

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House approves new ISS rule to stop fiscal war

For the rapporteur, the project will establish a minimum base of 2% of the ISS and end the fiscal war

The plenary session of the Chamber of Deputies approved, on Thursday (10), the basic text of the Complementary Law Project 366/13, from the Senate, which sets the ISS (Service Tax) rate at 2%, which is a municipal competence and that of the Federal District in an attempt to end the fiscal war between the municipalities.

Zeca Ribeiro / Chamber of Deputies

Due to the number of highlights and amendments, they will be analyzed next week. The project was approved by 293 votes to 64.

In the presentation of his new substitute, the rapporteur of the matter, deputy Walter Ihoshi (PSD-SP), included three main novelties. One of them is the ISS exemption for services provided by cooperatives to their members and services provided by members through the cooperative.

For the rapporteur, the project will establish a minimum base of 2% of the ISS and end the fiscal war. "We also have to update the list of new services that are not on the current list and, above all, internet services, such as Netflix, which is not taxed", he defended.

In order to provide in the infraconstitutional legislation the tax immunity provided for in Constitutional Amendment 75/13, Ihoshi includes a provision on the exemption of ISS in phonograms and music videograms produced in Brazil, whether by Brazilian authors or not.

The general rule of the text, however, prohibits the granting of tax or financial exemptions, incentives and benefits, including reduction of the calculation base or assumed credit. The text considers null a law or act that does not respect this rule.

The text allows some exceptions. Cities will be able to establish exemptions and incentives to the civil construction sectors, their related areas (hydraulic, electrical, well drilling services, excavation, drainage, irrigation, earthworks and paving), and to municipal public transport. The concept of public transport includes the various modes: road, rail, subway and waterway.

The states and the DF will have one year, as of the publication of the future law, to revoke the devices that grant the exemptions. The term is scheduled for the same term, one year after publication.

Administrative dishonesty
The third point included by the rapporteur is the permission for the municipality to have the possibility to take legal action on acts of administrative improbity against the public agent who grants, applies or maintains a financial or tax benefit related to ISS.

In the previous version of the text, this new type of administrative crime was already foreseen. The penalty will be for loss of civil service, suspension of political rights for five to eight years and civil fine of up to three times the amount of the benefit granted.

These changes to Law 8.429 / 92 will also take effect one year after the publication of the future law.

New services
One of the most debated points with the municipalities is the inclusion of new services in the list of those that can be taxed with the ISS. The project includes application of tattoos, piercings and the like; surveillance and monitoring of movable assets; and making audio, video, image and text content available on electronic pages, except for newspapers, books and periodicals.

In all cases of surveillance and monitoring, the tax is levied even when the activity is carried out by means of mobile telephony, transmission by satellites, radios or other means.

In the reforestation sector, several actions are included to specify the concept of similar activities. Among those specified by the project, soil repair, planting, silage, harvesting, cutting and debarking trees and forestry stand out.


Reportage - Eduardo Piovesan
Edition - Sandra Crespo


Source: Chamber of Deputies website (10/09)

SP - NFS-e - São Paulo changes ISS regulation

Source: DCI (São Paulo - SP) - 21/05/2012

The City of São Paulo published a new regulation for the Tax on Services of Any Nature (ISS) in the municipality, revoking a decree in force since 2009. Among the various changes present, 173 articles of Decree no. 53.151, of May 17, 2012, the most controversial is the inclusion of the normative instruction that since the beginning of the year blocks the issuance of Electronic Services Invoice (NFS-e) of companies that are in default in relation to the ISS payment.

"This inclusion will give us something to talk about", says lawyer Fabiana Gragnani, from Siqueira Castro Advogados. Some companies have already succeeded in court injunction to overturn the suspension and continue issuing the electronic note. The accepted argument is that the rule violates business freedom and constitutes coercion for the payment of tax debts.

The decree of the city hall brings the novelty in its article 81, paragraph 3, and stipulates the same form, term and conditions established by the Municipal Finance Secretariat. Thus, a person who fails to pay the ISS due for four consecutive months of incidence or six alternating months in a year is in default.

Some changes brought by the city hall, according to the lawyer, were already expected, such as the inclusion of rules on the Paulistana Invoice, provided for in ordinances.

The changes to some rates are also present in the regulation. Now they vary between 2%, 3% or 5% - that of 2,5% has been excluded. The 5% rate applies to the vast majority of services. Some activities went from 5% to 2%, such as financial institution services and public records.

The ISS is paid differently by independent professionals and uniprofessional societies (such as lawyers, doctors and dentists): it does not affect monthly billing, it varies according to the number of qualified professionals. “With the previous rule, some situations were excluded from this payment, such as companies whose partner is another legal entity or other companies. The new decree extended these exceptions ”, says Fabiana.

New exclusions from differentiated payment are companies that outsource activities or pass them on to third parties and those that have branches, branches, agencies or representative offices.

Another change concerns the extension of the ISS retention list by the service borrower: now sectors such as IT, advisory or consultancy of any kind, advertising and publicity, auditing, consultancy and economic or financial advisory and hotels and motels when taking or intermediating services of dyeing and laundry, they must also withhold tax at source.

The 2009 regulation (Decree No. 50.896) prevented uniprofessional companies from issuing electronic invoices. Now, they are required to issue the document. "This brings a new obligation, which can lead to complications", says the lawyer.

She highlights the special payment regime for health plans as an important change. "The plans may deduct payments made to third parties, as is already the case, for example, with advertising agencies or that perform intermediation and transfer services to third parties", says Fabiana. "What the plans pay taxes on services passed on to hospitals and laboratories can be deducted", he adds. The specific rules and deadlines are yet to be published by the municipality's Finance Secretariat.

Some fines were also updated: those from R $ 400 went to R $ 530, and those from R $ 1.100, to R $ 1.300, for example. The São Paulo invoice program should also be expanded, becoming similar to that of the state.

For the lawyer, the changes bring positive and negative things. “There are interesting situations, such as health plans and the reduction of rates. But there are controversial issues, such as that of defaulters, ”he says.