Brazil’s Supreme Court To Hear Appeal Against Service Tax On Franchise Income

Brazilian franchisers may have gained a new opportunity to try to reverse the Superior Court of Justice’s (STJ) 2007 ruling that from 2004 onward, franchise income would be subject to the municipal service tax (ISS). In a recent decision, Supreme Court Justice Marco Aurélio argued that franchise income is not characterized as service income and therefore should not be subject to ISS.
Decision 651255, published in the judiciary’s official gazette on May 26, was issued in acceptance of an appeal before the Supreme Court by Rio de Janeiro franchiser Spoleto Franchising Ltda.
The decision is important to the franchise sector, which includes many multinational companies, particularly in light of the STJ’s ruling in Special Appeal 87344 that franchise income received as of January 1, 2004, would no longer be exempted from ISS. The court cited the enactment of Complementary Law 116/2003 (the ISS Act), which lists franchising activities as taxable services.
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