STF derruba lei que reduzia base de cálculo do ISS

STF derruba lei que reduzia base de cálculo do ISS

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Por Beatriz Olivon 

O Supremo Tribunal Federal (STF) afastou ontem um mecanismo utilizado na guerra fiscal entre municípios: a redução da base de cálculo do Imposto sobre Serviços (ISS). Os ministros consideraram inconstitucional lei da Prefeitura de Poá (SP) que retirava tributos federais dessa conta.

A questão foi julgada por meio de uma arguição de descumprimento de preceito fundamental (ADPF) proposta pelo Distrito Federal. O entendimento, segundo o ministro Teori Zavascki, poderá agora ser usado para a resolução de outros casos envolvendo leis semelhantes.

A decisão favorece a Prefeitura de São Paulo, que briga na Justiça contra municípios paulistas. “Essa decisão do STF é a mais importante já tomada no Brasil em relação à guerra fiscal”, festejou o procurador-geral do município de São Paulo, Robson Barreirinhas.

Segundo dados da Associação Brasileira das Secretarias de Finanças das Capitais (Abrasf), que era amicus curiae (parte interessada) na ação julgada pelo STF, São Paulo estaria perdendo R$ 1 bilhão por ano com a guerra fiscal.

No caso, o Distrito Federal questionava pontos da Lei nº 2.614, de 1997, editada pela cidade de Poá. Após alterações realizadas em 2007, o texto passou a determinar que a base de cálculo do ISS é o preço do serviço, considerada a receita bruta, excluindo do cálculo Imposto de Renda (IRPJ), CSLL, PIS e Cofins. Por causa dos abatimentos, o Distrito Federal alegou que o município estaria praticando uma alíquota inferior a 2% – mínimo permitido pela Constituição.

Em sua defesa, Poá destacou a relevância da arrecadação do ISS. E acrescentou que grandes empresas, como Itaú e Safra Leasing, já estavam sediadas na cidade antes da alteração legislativa. As duas companhias, segundo o procurador Güido Pulice Boni, são responsáveis por 83,5% do total arrecadado.

Em dezembro de 2015, o relator, Edson Fachin, havia concedido liminar suspendendo a eficácia de dispositivos que alteraram a base de cálculo do ISS de Poá. Na sessão de ontem, reforçou sua posição. Fachin considerou que os trechos questionados são inconstitucionais.

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“Lei municipal não pode definir base de cálculo de imposto. Está na Constituição”, afirmou o relator. “A norma reduziu a carga tributária incidente sobre a prestação de serviços a um patamar vedado pela Constituição.”

Só ficou vencido no julgamento o ministro Marco Aurélio. A decisão vale desde dezembro de 2015, quando foi concedida a liminar pelo relator. No caso, a modulação dos efeitos da decisão seria favorável ao contribuinte, segundo o ministro Teori Zavascki.

No julgamento, os ministros analisaram também uma questão processual: o uso de ADPF contra lei municipal. O ministro Marco Aurélio questionou a possibilidade de vislumbrar lesão a preceito fundamental no caso. “Não tenho como risco ao pacto federativo o fato de um município vir a disciplinar base de cálculo do ISS tendo em conta o que entende como receita bruta”, disse.

Para o ministro Gilmar Mendes, porém, apesar de a ADPF ter como foco lei municipal, a discussão tratava do uso do ISS no contexto da guerra fiscal. “A causa imediata é a lei de Poá, mas o tema tem grande relevância federativa”, afirmou.

O ministro Luís Roberto Barroso defendeu que havia preceito fundamental, como o relator e os demais ministros, com exceção de Marco Aurélio. Mas ponderou que em algum momento o STF deverá se debruçar sobre a questão. “Acho que está se abrindo demais o foco e virando controle de quase tudo”, disse.

O advogado Gustavo Perez, do Peixoto e Cury Advogados, destacou a importância da discussão processual, por entender que a lei municipal deveria ser discutida em tribunal estadual por meio de ação direta de inconstitucionalidade. Mas como o caso concreto foi proposto pelo Distrito Federal, foi aceita a ADPF. “Mas essa questão foi pouco discutida para ser considerada um precedente”, afirmou. Sobre o mérito, Perez disse que o artifício usado pelo município era um pouco desleal.

No fim da sessão, o procurador de Poá afirmou que estudará a possibilidade de recorrer por meio de embargos. A Abrasf, segundo o advogado Ricardo Almeida, também poderá recorrer para que sejam declarados inconstitucionais outros pontos da lei do município paulista.

Fonte: Valor Econômico
Data: 30 de setembro de 2016
Acesso: 30 de setembro de 2016

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