Prestador de serviço luta para ficar no regime especial do ISS

Prestador de serviço luta para ficar no regime especial do ISS

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Mudanças nas questões que constam de declaração exigida pelo fisco paulistano são uma armadilha, segundo contadores

Prestadores de serviços que atuam no município de São Paulo como sociedades uniprofissionais – como médicos, dentistas, contadores, engenheiros e advogados – travam uma batalha contra a Prefeitura para se manter no regime tributário especial e, portanto, recolher o Imposto sobre Serviços (ISS) sobre valores fixos, por profissional, em vez de uma alíquota de até 5% sobre o faturamento.

O ponto de discórdia atual envolve a D-SUP, uma declaração exigida desses profissionais desde o ano passado, cujas respostas, neste ano, podem levar ao desenquadramento do regime tributário que estabelece valor fixo de ISS.

Neste ano, a colocação de uma questão no questionário que acompanha a declaração deixou esses profissionais em estado de alerta e tem gerado ações judiciais movidas por entidades ligadas às áreas de saúde, engenharia e contabilidade.

A polêmica pergunta: esta sociedade adota o modelo de responsabilidade limitada, constando em seu nome empresarial a expressão “Limitada” ou “LTDA”? O prazo de entrega, incialmente previsto para este mês, foi prorrogado para o dia 30 de dezembro, mas não encerra a questão.

De acordo com Márcio Massao Shimomoto, presidente do Sindicato das Empresas de Serviços Contábeis em São Paulo (Sescon-SP), entre os associados, já houve casos de “expulsão” do regime tributário quase que automática a partir da data em que a empresa, em caso positivo, utiliza a expressão Limitada ou LTDA.

E mais. Segundo o dirigente, a pergunta foi inserida no questionário, respondido de forma online, no dia 10 de outubro. Se a empresa confirma possuir a expressão LTDA na razão social, a pergunta seguinte é: desde quando?

“Se a Prefeitura não mudar essa postura, haverá uma debandada de prestadores de serviços da capital, que vão preferir se estabelecer em cidades como Guarulhos, por exemplo”, prevê.

Em várias reuniões mantidas com a Secretaria de Finanças, o Sescon tentou um diálogo, mas o impasse continua. Com a transição do governo, o dirigente espera que o fisco paulistano reveja o seu posicionamento.

De acordo com Shimomoto, nenhum outro município tem a mesma interpretação da Prefeitura de São Paulo.

Com a instabilidade jurídica provocada pela declaração, a DSUP, e os seus efeitos baseados nas respostas, o prazo de entrega foi prorrogado do dia 30 de outubro para o dia 31 de dezembro.

O adiamento foi visto com bons olhos pelo Sescon, que aguarda um posicionamento do Judiciário a respeito de dois mandados de segurança movidos pelo sindicato e a Aescon (Associação das Empresas de Serviços Contábeis), que pedem a extinção dos efeitos da pergunta e, portanto, do desenquadramento dos prestadores de serviços.

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DIVERGÊNCIAS 

Baseada em algumas decisões judiciais, o fisco paulistano entende que o profissional liberal que limita a sua responsabilidade não pode ser uniprofissional.

“A prefeitura não quer mais a figura de uniprofissional na capital. E hoje, 90% dos contadores são uniprofissionais”, afirma Shimomoto.

Na sua visão, a interpretação do fisco é equivocada porque o próprio Código Civil não limita a responsabilidade das empresas, mesmo na condição de LTDA.

Na opinião do advogado tributarista Kiyoshi Harada, a iniciativa da Prefeitura é uma “inusitada” arbitrariedade e atenta contra os princípios da razoabilidade, previsibilidade e segurança jurídica, este último um instrumento indispensável à vida democrática de qualquer país.

“Onde não há previsão do que o poder político pode fazer, o contribuinte fica na escuridão”, afirma.

De acordo com o advogado, que recomenda às entidades de classe ingressarem com uma Ação Direta de Inconstitucionalidade, nenhum tribunal dará respaldo à tese da Prefeitura, cuja legislação que trata do assunto faz distinções equivocadas sobre as sociedades de prestadores de serviços não condizentes com a legislação federal.

De acordo com a Lei 13.701/2003, sociedades cujos sócios exercem a mesma atividade e que prestam serviços de forma pessoal em nome da sociedade, assumindo responsabilidade pessoal, podem ser enquadrados no regime especial de recolhimento das Sociedades Uniprofissionais.

Nesse sistema, o fisco considera como base de cálculo do ISS um valor fixo mensal proporcional ao número de profissionais habilitados.

No município de São Paulo, desde 2015, as sociedades enquadradas nesse regime estão obrigadas a declarar anualmente se atendem ou não às condições estabelecidas em lei.

O sistema da Declaração das Sociedades Uniprofissionais – D-SUP permite que essa declaração seja feita eletronicamente, através de um formulário em que são apresentadas perguntas para verificar se todas as condições para manutenção do regime especial são atendidas.

A Secretaria Municipal de Finanças foi procurada para comentar sobre as mudanças na D-SUP e não respondeu ao pedido de entrevista até o fechamento desta edição.

Fonte: Diário de Comércio
Data: 17 de novembro de 2016
Acesso: 18 de novembro de 2016

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