Materialidade do imposto sobre serviços de qualquer natureza: ISS

• Ano de defesa: 2023
• Autor(a) principal: Abreu, Anselmo Zilet
• Orientador(a): Carrazza, Roque Antonio
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: ISS; Imposto sobre serviços; Aspecto material; Conceito
• Palavras-chave em Inglês: ISS; Tax over services; Material aspect; Concept
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/39423

The material aspect of the incidence hypothesis of ISS, as to what services mean for tax purposes, has undergone changes in interpretations by jurisprudence since its creation, sometimes giving a greater scope to the tax, sometimes restricting the scope of its materiality. In the doctrine, there are two main opposing theses (one that service has an economic concept, including even leasing of movable property, and another more restrictive, which limits service to the obligations of Civil Law), both of which show inconsistencies. The objective of this thesis is, through bibliographical and jurisprudential research, carry out an in-depth study that seeks to equate the scope of the material aspect of the incidence hypothesis of ISS with constitutional provisions and the distribution of tax powers, considering the evolution of legal thought and social facts that relate to the tax, to develop a definition of the term “services of any nature” that brings a solution as to the conflicts of competence related to the tax. From the analysis carried out, it is concluded that, by conferring tax jurisdiction on competent entities with regard to taxes, the Constitution does so through concepts, so that CF/88 expresses a concept of service, notwithstanding the need for a supplementary law to define the hypothesis of the incidence of the tax and the services subject to the tax, due to the existence of real gray areas between the materialities of taxes that affect consumption, and the existence of more than one concept possibility within the framework outlined by the Constitution. And then, from the conclusions reached in the study, the following definition was proposed regarding the concept of service of any nature: service is the development of an activity, which configures a work in process, that is, a human effort in its broadest sense, developed concurrently with the fulfillment of the contracted service, carried out as an autonomous activity, that is, that it be the object, the core, of the rendering, with or without the use of materials, whose development of the activity itself generates a utility to others, and that has not been expressly conferred by the Constitution to the tax jurisdiction of another entity