PINTO, G. T.; PINTO, Gildenez Tomaz.
Abstract:
With the edition of the Complemented Law N° 116/2003, was instituted in his/her list
encloses, in the items 21 and 21.1, the collection of the Tax On Services of Any Nature
ISSQN on the services certioraris, you would notice, you register. To present research he/she
has as I aim at demonstrate the constitutionality of the incidence of the mentioned tax,
glimpsing, at the same time, general characters of the tributes and their species. The choice of
the theme is legitimated by the seriousness and gravity that it girds him/it, in the measure in
that the theme generates doctrinaire controversies related to the non service to the legal
pessupost entitled in complementally law seeking the fil tax execution. In this context, the
present work i f it proposed to investigate the possibility or not of the incidence of ISSQN on
the services of registry offices, revealing the criterion of the constitutionality. For his/her
accomplishment, the comparative method was used by having i f confronted, along the work,
predominantly, two divergent currents concerning the theme. With such a study, the
explanation of the subject was aimed at, as well as the indication of the positioning doctrinaire
that better becomes fond to the Brazilian tax ordenament. Concerning the divergence on the
theme, it leaves of the doctrine understands that it is not possible the taxation through ISSQN
on the services of registry offices tends in view the public character of the service, therefore,
exempt of imposed. This because the Federal Constitution of 88 bans such collection through
the service to the beginning of the reciprocal immunity. However, other part of the doctrine -
which affiliates most of the reporters of Federal Supreme court in ADIN N° 3089 - he/she
understands that the notaries and registrars in general, except for exceptions, they are
organized and they are structured under regime of private right. In that way, once in the acting
of the vicarial activities, they start to render services under his/her bill and economical risk,
bargaining profits or supporting eventual damages. Being analyzed such currents, that
you/they possess other arguments contends in the development, it was concluded by the
legality of the collection of ISSQN in the services certioraris, not having any impediment to
the taxation of the activities contends in the items 21 and 21.1 of the enclosed list to the
Complemented Law 116/03 that are exercised in private character. Like this, verified the
generating fact of ISSQN that is the installment of the service, contends in the foregoing list
of services and the consequent release, such tribute should be collected as execution form to
the law. Such conclusion explains the divergence above mentioned and he/she offers to the
tax field a fair and legal guideline to be adopted.
