The ISS system chosen by the legislator is based on the description of activities (objective aspect), and not on the characteristics of the provider (subjective aspect).
Based on this understanding, the 18th Public Law Chamber of the Court of Justice of São Paulo defined that the ISS rate to be collected by a health plan administrator in the capital is 2%, and not 5%, as charged by the City of São Paulo.
According to the records, the company's exclusive activity is the administration of benefits for private health care plans. When issuing the ISS, the city government classified the activity as “general administration”, with a rate of 5%. In court, the company argued that it should be classified as “other health plans”, with a rate of 2%.
In the first instance, the request was denied, confirming a debt of R$1.5 million, related to the ISS from 2014 to 2017. However, the TJ-SP, unanimously, reformed the sentence and annulled the debt, setting the rate charged to the health plan administrator at R$21.4 million. The rapporteur was Judge Roberto Martins de Souza.
At the outset, he explained that the author's activity does not qualify as a health care plan operator, as defined by Law 9,656/98. The judge said that operators act directly in making health care services viable, negotiating conditions with hospitals and professionals in the area (end providers), that is, they are the first link between the user and the service.
“In turn, the author and other plan/benefit administrators appear as a second link, situated between the operator and the consumer, so that there is no negotiation, transfer of resources or contractual link with the hospitals and doctors. In fact, it was clearly demonstrated in the records that the author is not a health plan operator”, he stated.
In this scenario, the judge highlighted that the issue in the case is to understand which is the most appropriate classification among the items on the service list, observing the principles of Tax Law and the correct interpretation of the legislation on ISS.
“As the list allows for extensive interpretation (Theme 296/STF), the lack of a specific item on a given activity, a situation that is not uncommon in a context of complex economic relations, makes it necessary for the interpreter to use the item that best fits the factual scenario. This judgment of compatibility, however, is not limited to classifying the service under the item whose wording is more generic, as ended up being done, in this case, by the tax administration”, added Souza.
According to the rapporteur, the tax is levied on the provision of a service, and never on a legal qualification: “In this subtlety lies the mistake of the tax administration: the classification of the service described as 'other health plans' does not require the qualification of the provider as a 'health plan', unlike the grounds that support the infraction reports.”
In other words, Souza stated that the criterion chosen by the legislator regarding the ISS was objective, with the description of taxable services regardless of the characteristics of the provider, whose relevance is restricted to the subjective hypotheses of immunity and exemption.
“Based on this conclusion, the question is not whether the author is qualified as a health plan, but whether its activities are more similar to those carried out by plans/operators than to the services developed by administrators in general. Added to these facts is the subjection of administrators to Law 9,656/98 (article 1, § 2), and, consequently, to the regulatory action of the ANS”, he explained.
According to the judge, the intermediation services provided by the administrators are not merely ancillary to those provided by the plans, whose scope is also intermediation. In fact, there was a kind of “rearrangement of responsibilities”, with the administrators dealing with the end consumer and the health plans negotiating with professionals and hospitals.
Business model
Thus, Souza stated that benefit administrators have a business model that is notably different from administration or brokerage, they develop activities traditionally provided by health plans, and operate exclusively in the health area, being subject to specific legislation and regulations.
“These three points are already sufficient to demonstrate that the services discussed in the case are much closer to those provided by health plans than to those of 'general administration, including third-party assets and businesses', such as the administration of condominiums or investment funds, which denote a relationship of representation, with the subordination inherent in the management of third-party assets”, he added.
The relationship between the administrator and the health insurance companies, the rapporteur stated, is not one of subordination, but of interdependence (“although mostly unilateral, resembling “commensalism”), without which there would be no benefits and plans to be offered. In other words: there is a chain of contracts, involving several links.
“It is unreasonable to use different rates for services provided within this same chain, given the economic impact on indirect taxes, equality and the competitive aspect involved. There are operators that concentrate the marketing of their own plans, collecting ISS on the rate of 2%, so that the use of the rate of 5% for administrators would end up violating equality”, concluded the judge.
The company is represented by lawyer Rodrigo Helfstein, from the BCOR law firm – Bonaccorso, Cavalcante, Oliveira and Ristow Law Firm.
Case 1011780-23.2021.8.26.0053
Source: https://www.conjur.com.br/2022-jun-08/aliquota-iss-administradora-planos-decide-tj-sp