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STJ determines on the collection of ISS on foreign fund management

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In a recent decision, the Superior Justice Tribunal ruled on the incidence of ISS on the management of foreign investment funds in an unprecedented way. The controversy concerns Complementary Law 116/03, which provides in art. 2, item I, that the Services Tax does not apply to services exported abroad. However, the sole paragraph excludes services developed in Brazil from the exemption, the result of which is verified here, even if the payment is made by a resident abroad.

For the majority of the 1st Panel of the STJ, if it is determined that the results of the purchase and sale of assets occurs in Brazil, this would constitute the incidence of the single paragraph, with no configuration in service exports. According to the reporting Minister, the receipt of the resources from abroad is done so in an operational formality, which does not support the ISS exemption. However, the Ministers stressed that this decision is not valid as a paradigm, as there are different models of management funds, and each case must be analyzed individually.