Norma padrão do imposto sobre serviços de qualquer natureza (ISS): materialidade e base de cálculo

Abstract

The present work has as objective the construction of the legal norm, to which the ordinary legislator owes the necessary observance for the creation of the Tax on Services of Any Nature (ISS). Notwithstanding all the normative criteria that compose this norm being essential to delimit the legislative operation of the Municipalities and of the Federal District for the institution of this levy, one shall give greater emphasis to the identification of its material and quantitative criteria (base of calculation, except for the one related to the personal work of the taxpayers themselves and to the societies of professionals), considering that the logical semantic integration of these terms is a secure index to identify the real nucleus of legal incidence which may be submitted to taxing. For the elaboration of the work we will focus our analysis on the norm of legislative tax competence of the ISS, a norm that confers permission for the Municipalities and the Federal District to create this levy according to a set of limitations imposed by the positive law itself and, consequently, in the prescriptions that materially inform the ordinary legislator s conduct for the creation of this exaction (constitutional principles, constitutional and complementary enunciations). We conclude, finally, that the Municipalities and the Federal District may erect as a taxable fact by the ISS only renderings of services described in the Complementary Law 116/2003 and that the reference unit to be provided as base of calculation of this levy must be the price of the service, so understood the gross revenue from it, without any deductions, except in the case of rendering of services of civil construction, a hypothesis in which the price of the service will be the revenue resulting from it, with the deduction of the value of the materials supplied by the renderer, and of the renderings of services carried out on a subcontracting basis, a case in which the base of calculation must be the price of the service, with the deduction of the value of the subcontractings, taxable by the tax