Inconstitucionalidade da exigência do imposto sobre serviços no arrendamento mercantil internacional

• Ano de defesa: 2017
• Autor(a) principal: Casquet, Pedro Guilherme Modenese
• Orientador(a): Carrazza, Elizabeth Nazar
• 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: Arrendamento mercantil; Importação; Imposto Sobre Serviços
• Palavras-chave em Inglês: Leasing; Import; Tax on Services
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/20621

The purpose of this thesis is to present the difficulties of adapting the constitutional archetype idealized by the Federal Constitution to absorb the complexity of Brazil's insertion in global commerce, especially as a consumer of cross-border services. For this reason, this study begins by facing the existence of a constitutional concept of services and the tax limits that have been consolidated for such concept; it goes on to show how the complexity of the service provision activity has overtaken the legal frameworks until then accepted for this concept and how the rigid division of powers conceived by the Federal Constitution prevents this concept from widening in relation to what was then consolidated under the penalty of invasion of powers and, even more serious, absolute absence of predictability to the system. With these general considerations, the paper begins to address the difficulty of adequacy of the commercial lease to the concept of service, identifying the logical flaws of the decision provided by the Federal Supreme Court in this respect and demonstrating how the absence of a nucleus for the activity of doing prevents not only the correct identification of the material criterion of the ISS incidence hypothesis, but also the establishment of a spatial criterion. Once this problem has been established, the ISS incidence on the importation of services is examined, demonstrating that the incidence hypothesis in these cases is also extinguished by the absence of valid material and spatial criteria. Following, parentheses are opened to detail the economic importance of international leasing as essential for the inclusion of Brazil in the international productive scenario, as a fundamental instrument for access to the means of production with high added value, retaking the legal discussion to highlight how complexity of this activity, when carried out at the international level, deepens the impossibility of being taxed in Brazil, under the bias of importing services. In the end, the purpose of the construction of this line of reasoning is to show that, in operations related to international leasing, even if the material barrier to importing services is exceeded, the absolute lack of a criterion validity, which could attract competence to any of the possible active subjects, would prevent its taxation, even if a complementary law could be issued in this sense, as determined by article 146 of the Federal Constitution. Subsequently, it is demonstrated that the extirpation of these criteria of the incidence hypothesis would insanely affect the establishment of other criteria, as well as, for example, the quantitative criterion, which is why the thesis is defended of the unconstitutionality of its collection and the proposition that, if this taxation is intended by the Brazilian State, it should promote the necessary changes in the Federal Constitution so that it is possible to consolidate a new constitutional concept of service or increase the tax capacity of municipalities to cover other activities than "rendering of services"