Franchise networks are having prosecutions in justice when challenging service tax (ISS) collection. The rate of the tribute varies according to the municipality. As an example, in Porto Alegre the percentage is 2.5%, already in canoes, the value to be collected can reach up to 5% on revenue from fees paid by franchisor franchisants. However, the Judiciary has already signaled that the franchise contract is not properly a service provision contract, which is why it would not be subject to ISS, thus enabling recovering the values ​​collected unduly in the last 5 years.

One of the factors that can interfere in the contributor favorable scenario is the judgment of the issue of franchisants in the Federal Supreme Court (STF). The extraordinary appeal that will deal with the issue (Re 603,136) has been in a rapture since 2009. The general repercussion of the appeal has also been recognized, which originally involved only a dispute between Venbo Comércio de Alimenta Ltda ., Which operates The brand of restaurants Bob's , and the city hall of Rio de Janeiro.

As a comparison, the binding Summary # 31 of the STF consolidates understanding that ISS does not focus on leasing of movable property. That is to say, this tax can not focus on other species of contracts, but only on the provision of service. In this way, we understand that the STF will maintain consistency on its ISS positioning, then excluding the possibility of this collection on the franchises.

In this respect, it is important to note that Ministers Luiz Fux and Tori Zavascki, when they examined the subject still as Ministers of Superior Court (STJ), understood that, despite the express inclusion of franchise In the list of services attached to Complementary Law No. 116/03 (LC 116/03), it would not be understood in the Constitutional Concept of Service. They also emphasized that this issue should be analyzed by the STF, which has jurisdiction to judge constitutional matter.

The Court of São Paulo (TJ-SP) is one of those who have a position favorable to the taxpayer. In August this year, the Court denied a call from the municipality of São Paulo, who asked for a sentence reform that freed the automotive services franchisor of the payment of the tribute.

The first instance sentence recognized that "Unable to collect ISS" on the initial and monthly fees charged for franchisees. In addition, he condemned the municipality to pay costs and procedural expenses, as well as attorney fees in the amount of R $ 4,000.00. The municipality argued that LC 116/2003 included the franchises in the list of activities on which it focuses on the ISS. However, Special Body of the TJ-SP recognizes, since 2010, that such inclusion is unconstitutional.

The Court held that, because it is a complex contract, which involves three types of legal relations (license for brand use, technical assistance provided by the franchisor and possible supply of goods), there could be not been presupposed services on which it could focus on ISS.

There is no prediction when the STF will judge the case. On the site of the STF, the last movement of the extraordinary resource occurred in May 2013. To which everything indicates, the continuity of the case depends on the rapporteur's determination, Minister Gilmar Mendes, so that the action is included in the plan of the plenary (DCI-SP of 22/1/2014).