O aspecto espacial da tributação da prestação de serviços offshore

Abstract

This is relevant matter both for society in general and to the interests protected by the companies exploiting oil through offshore platforms, as well as their representative bodies, given that states and municipalities use the wrong legal grounds to enforce taxation of ICMS and ISS respectively on events occurring in vessels located in the territorial sea, exclusive economic zone and continental shelf. Unconstitutional division of tax powers between the states and municipalities in the maritime territory is made by these entities themselves on the basis of the sole paragraph of art. 9 of Law No. 7.525/86, which provides the allocation of oil wells located in the continental shelf for royalty payments purposes to the subnational entities. The law, in its article 9, delegates to the Brazilian Institute of Geography and Statistics - IBGE - the ability to draw orthogonal lines and parallel maritime projection and establish the boundaries of the territories of the states and municipalities for distribution of such financial compensation. Using the logic of Law No. 7.525/86 and Decree No. 93.189/86 to determine their tax powers based on the facts practiced on oil platforms affront the principle of territoriality and translates into real analogy to the imposition of tax liability, form of integration prohibited by the National Tax Code and the Federal Constitution. This recurrent practice ends up generating potential situations of multiple taxation with many entries made by different state or municipal entities, based on the same taxable event and the same taxpayer. In addition to distortion of the application of Law No. 7.525/86, the states and municipalities draw their tax powers act in flagrant affront to art. 146, I, of the Constitution, since it’s role of a supplementary law to settle conflicts of jurisdiction in tax matters between the federal entities. Thus, we note that there is no need to talk about projection of the territory and, in turn, of the powers of states and municipalities, where the absence of federal law, including the fact that Law No. 8.617/93, in its art. 2, says that Brazil has full sovereignty over its territorial sea, economic sovereignty in the Exclusive Economic Zone and sovereignty for the purpose of exploitation of natural resources on the continental shelf.