Contrato de franquia: a inconstitucionalidade da incidência do ISS e a função social exercida

Abstract

The tax on services of any nature (ISS) is a municipal and county tax on services stipulated in the list attached to Complementary Law. 116/03. However, even though the franchise agreement is provided in subsection 17.8 of such a list, there is no need to talk about charging the ISS on services provided by the franchisor to the franchisee, both on assignment of right of use of trademark or patent, target activity, and the transfer of knowhow, activity as a medium. The main object of the franchise agreement does not conform to the constitutionally assumed concept of service, which is why its prevision by subsectin 17.08 is shown as unconstitutional. Furthermore, the franchise, view from the perspective of Social Right and Social Justice, is a contract that employs thousands of direct and indirect workers, of utmost importance to the implementation of the Social Constitutional Right to Work, so that the incidence of ISS on it, in addition to other taxes already incident on such an activity, would overtax the contractual relationship, which would be discouraged, with the consequent decrease in revenue collection, as well as the decrease in jobs, which directly contravenes the constitution in light of non-compliance of the social function of the contract