Tipos, conceitos e serviços de qualquer natureza – houve superação da dicotomia obrigação de dar x obrigação de fazer pelo STF?

Abstract

This article aims to analyse the recent jurisprudence of the Brazilian Supreme Court regarding the constitutional concept of service, for purposes of ISS taxation, as well as the (dis)importance of the distinction between types and concepts for the subject. In this sense, through the analysis of the leading cases of the Court, it is concluded that there was no abandonment of the idea of service as an obligation to do, remaining, however, lacking uniformity in the judgments regarding the need for the preponderance of “doing” for purposes of configuring the activity as a service. The usefulness of the discussion between types and concepts for the controversy is removed, since, in any case, it will be necessary to establish a minimum element for the conception of taxable service. Finally, we proceed to the analysis of what this element would be, reaching the conclusion, through the application of literal, systematic and historical-teleological methods of interpretation, that the Constitution adopted the concept of service present in the Economy, coinciding with that of immaterial utility, further emphasizing, in our opinion, the need to investigate the preponderance.