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Date: October 29, 2020
Posted by: CPDMA team

New rules for calculating and collecting the ISSQN

Recently, the legislation that provides for the Tax on Services of Any Nature, of municipal competence, has undergone significant changes in terms of the calculation and collection system. Such changes are generating many doubts for taxpayers, which inevitably brings shocks to legal certainty. This is how the publication of Complementary Law nº 175, of September 23, 2020, has been seen by the affected sectors.

The novelty that can already be seen in the first articles of this law is the implementation of an electronic system of unified standard of accessory obligations to be created individually by the taxpayer or together with others, in accordance with the regulation determined by the Management Committee of Accessory Obligations (CGOA). ). 

This body, by the way, was created with the objective of unifying the mandatory collection rules for all municipalities and the Federal District. Its members, in a total of ten, will be appointed by the National Front of Mayors (FNP) and by the National Confederation of Municipalities (CNM), with two representatives from each region of the country being chosen. In addition, the CGOA will have the assistance of a technical group to develop its attributions, which will be composed of two members to be appointed by the municipal entities that make up the Committee and two members appointed by the National Confederation of Financial Institutions (CNF).

The law provides for the possibility of deferring the tax in relation to the competences of January, February and March 2021, which may be collected until the 15th day of April 2021, updated by the reference rate of the Special System of Settlement and Custody ( Selic), without imposing any penalty. This forecast, according to the CNM, would be related to the creation and availability of the unified system to users - taxpayers and Municipalities. 

Another change brought about by LC 175/2020 concerns the change of the place of incidence of the tax, which for some services will become the domicile of the borrower (client). This point is what raised the greatest questions from taxpayers, given the lack of definition of essential concepts for effective tax incidence.

The sectors of health plans, credit and debit card administrators, funds, consortia and leasing were the ones affected by the new system, which led to the resumption of the agenda already brought to trial in the STF in ADI 5,835, due to of the publication of Complementary Law No. 157/2016 with the same provision.

At that time, Minister Alexandre de Moraes determined, in an injunction, the suspension of this new ISSQN collection rule, precisely due to the lack of clarity of concepts, especially regarding the definition of who would be the service taker, a situation that would generate difficulty in the application of the law and would seriously undermine legal certainty in Brazil.

In relation to the law published in September, the National Confederations of the Financial System (Consif) and of General Insurance Companies (CNSeg) have already manifested themselves in the aforementioned constitutional action, in order to clarify the persistence of the reasons that justified the granting of the measure. injunction in March 2018, which is why they requested its maintenance, considering the ineffectiveness of the legislation regarding the aforementioned aspects.

On the other hand, the CNM claims that the conceptual omission of service taker was addressed by LC 175/2020, when addressing the definition of taxpayer in its art. 14, which amended the specific provisions of art. 3 of LC 116/2003.

As can be seen, there are still many uncertainties about the effectiveness of the new law, which undoubtedly causes a shock to all taxpayers who are affected by the legislative change. In addition, those sectors that so far have not been affected, note the issue, fearful that the new changes in the ISSQN legislation could affect them in the same way. 

Aware of this concern of companies, the tax team of Cesar Peres Advocacia Empresarial has been closely monitoring these news and is available to assist in whatever is necessary, seeking to combine the success of your business with compliance with tax legislation.

Source: Claudia Gardin Martins, attorney at Cesar Peres Dulac Müller.

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