Smaller ISS increases legal security for bank discounts

Smaller ISS increases legal security for bank discounts

STJ precedent on ISS strengthens the understanding that unconditional discounts are not part of the tax calculation basis and may influence disputes in other sectors and in the future IBS

Jaqueline Mendes

An understanding that has been consolidated by the Superior Court of Justice (STJ) begins to produce practical effects for financial institutions by removing commercial discounts granted on bank fees from the calculation basis of the Service Tax (ISS). The thesis considers that the tax should only apply to the amount actually received by the bank, reduces tax contingencies, can influence similar discussions in other sectors of the economy and anticipates a logic that was incorporated by Complementary Law No. 214/2025 for the Tax on Goods and Services (IBS) and the Contribution on Goods and Services (CBS).

The precedent was recently applied by the Court of Justice of Paraíba (TJPB), which annulled a tax assessment of approximately R$3 million against a financial institution. The municipality maintained that the ISS should be levied on the tariff ceiling authorized by the Central Bank, and not on the amount actually charged to the customer.

According to Marcelo Costa Censoni Filho, partner at Censoni Advogados Associados and CEO of Censoni Tecnologia Fiscal e Tributária, the position established by the STJ represents an important step towards legal certainty on the topic, although the controversy is not yet definitively over. “The understanding is in a clear process of consolidation, but it cannot yet be considered fully consolidated from the perspective of a binding effect for all cases”, he states.

The tax expert explains that the matter has not yet been analyzed under the rite of repetitive appeals, which leaves room for questions from municipalities. Still, it highlights that favorable decisions in state courts indicate a gradual strengthening of the thesis in favor of taxpayers.

Price actually charged

At the center of the controversy is the definition of the ISS calculation basis. In tax assessments, some municipalities maintain that the tax must be levied on the maximum value of tariffs authorized by Central Bank regulations. The STJ understood that taxation should only consider the price actually charged in the relationship between bank and customer.

For Marcos Correia Piqueira Maia, partner in the tax area at Maneira Advogados, the legal thesis about unconditional discounts is already consolidated in jurisprudence. “As for the legal thesis, the jurisprudence is consolidated: unconditioned discounts are not part of the ISS calculation basis.” According to him, the remaining debate became essentially factual. “The controversy has moved from ‘whether the unconditioned discount is part of the basis’ to ‘whether, in the specific case, the discount is in fact unconditioned or conditioned’.”

Marcos Correia Piqueira Maia, partner in the tax area at Maneira Advogados

The lawyer explains that the distinction depends on the discount being previously agreed between the parties and not being conditioned on a future event. In these cases, the rebate reduces the price of the operation itself and, therefore, is not included in the tax calculation base.

Reflections for banks and other sectors

In the experts' assessment, the effects of the understanding reached by the STJ go beyond the specific case of financial institutions. Censoni states that the exclusion of commercial discounts from the calculation base reduces tax costs and reduces the risk of tax assessments, which, according to him, expands the space for commercial policies based on discounts. “The consolidation of this understanding represents financial relief both in terms of reducing current tax costs and eliminating past tax risks”, he says.

Maia observes that the precedent reaffirms a principle already adopted in different taxes on consumption. “It is, therefore, not a discussion of financial institutions, but of practically the entire economy.” According to him, the same logic can be applied by companies in industry, commerce, telecommunications and other segments that grant previously agreed commercial discounts to customers.

Tax reform incorporates understanding

The future replacement of ISS by IBS does not eliminate the discussion about commercial discounts, but it tends to reduce some of the legal controversies. Maia highlights that LC 214/2025 expressly incorporated the understanding consolidated by case law by excluding unconditioned discounts from the IBS and CBS calculation basis. "The discussion does not lose relevance. It carries on and, as for the thesis, it has been positive."

According to the tax expert, the main change will be the focus of disputes. Instead of discussing the legal interpretation of the concept of unconditional discount, the litigation should focus on proving that the discount was granted before the occurrence of the triggering event and appears in the tax document.

For Censoni, the consolidated understandings within the scope of the ISS should continue to serve as a reference during the transition to the new tax system. “Both taxpayers and tax administrations will need to adapt the understandings built under the ISS to the new system.”

The expectation is that the consolidation of this interpretation will contribute to reducing litigation throughout the transition from municipal taxation to IBS, preserving the principle that the tax should only apply to the amount actually received by the service provider.

https://capitalaberto.com.br/regulamentacao/iss-menor-amplia-seguranca-juridica-descontos-bancarios/