The Court of Justice of São Paulo (TJSP) upheld an injunction that allows members of the Associação Paulista de Medicina (APM) to apply a more beneficial ISS calculation formula. The decision issued in the second instance on June 8 allows members to disregard Law 17,719/2021, which changed the tax collection system for sole proprietorships, such as law and accounting firms and medical practices.
After the rule, the ISS began to be calculated based on a presumed gross revenue, which varies according to the number of qualified professionals in the company. With the injunction, members can collect the ISS in accordance with the rules prior to Law 17,719/21. Until then, the tax was paid by sole proprietorships based on the number of qualified professionals.
According to the APM, the change in the calculation method used by the city government would, in some cases, increase the cost of the tax by almost 1,800%. With the decision, the old calculation rationale used until the end of 2021 will continue to be applied for APM members.
“Composed of professionals from the same area, such as medical practices, single-professional companies, also known as SUPs, benefit from the fixed collection of ISS, as long as the personal nature of the services provided is maintained and the business nature is removed”, explains lawyer Alessandro Acayaba de Toledo, partner at the Acayaba Advogados law firm, who acted in the case representing APM.
“Since February of this year, the city of São Paulo has changed the way it calculates the fixed ISS, considerably increasing the collection of this tax. A single-professional company with 10 partner doctors collected the fixed base of R$ 19,952.60 and, with the new law, began to collect R$ 34,976.30, that is, an increase of more than 75%”, he exemplifies.
According to APM, the calculation basis varies according to the number of partners: the more partners, the higher the tax, reaching an increase of 1.725% in companies with 130 partners, he explains. “This court decision is unprecedented in the medical class and is only valid for legal entity members of APM”, highlights Acayaba.
The discussion is contained in process 2127342-91.2022.8.26.0000.