The Present cause for payment of attorney fees in judgments annuling ISS tax collection

Abstract

The collection of ISS from independent professionals, while they are acting through legal entities, is legitimate, and the municipalities are correct in their constant analysis and case-by-case subsumption throughout the year. However, any kind of collection of the aforementioned tax, simultaneously from the individual of the professional, is harmful, in the absence of proof of the taxable event, more specifically, an invoice for the service. Numerous municipalities collect ISS from the professional, with the existence of the individual's registration being sufficient, even if they do not have proof of the service performed, of the past taxable event. This way, lawsuits are filed by the injured taxpayer and, curiously, many of them, even with valid decisions, attribute the blame for the legal problem to the professional and taxpayer for not changing his registration and misleading the collector, the municipality. The result is the incidence of the causal theory of attorney's fees against the author of the annulment action with a valid judgment. Such an act represents an undue phenomenological-procedural inversion that must be combated, with a theoretical analysis of the occurrence being sufficient, in terms of legal phenomenology. To conduct this research, the hypothetical-deductive method was employed, utilizing a comparative approach and the technique of indirect documentation. A bibliographic review was carried out in legal books and journals, in addition to consultations of relevant documents and websites.