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The Brazilian Superior Court of Justice (STJ), when analyzing Theme 1323, established the thesis that the adoption of the limited liability company structure does not, in and of itself, prevent professional partnerships from qualifying for the special fixed-rate ISS taxation regime provided for in Decree-Law No. 406/1968.

The dispute originated from São Paulo’s municipal legislation, which prohibited entities incorporated as limited liability companies from benefiting from the fixed taxation regime. The municipality argued that this legal structure would remove the personal nature of the partnership, giving it a business character and, therefore, making it incompatible with the tax benefit. Based on this interpretation, the municipality began to charge ISS on gross revenue, excluding professionals who personally and directly perform their activities from the fixed-rate regime.

Reporting Justice Afrânio Vilela noted that the Court had previously held that limited liability companies could not benefit from the preferential tax treatment. However, this understanding has evolved to recognize that the legal form adopted is irrelevant for purposes of applying the differentiated regime established in the Decree-Law.

The decisive factor for granting the benefit is the provision of specialized services with personal liability of the partners and without a business-oriented structure. The Court also emphasized that entitlement to the preferential regime depends on the actual activity carried out by the entity, which must fall within those listed in Article 9, paragraph 3, of the Decree-Law.

It is also necessary to assess whether the professional activity does not assume a business nature, as defined in Article 966 of the Brazilian Civil Code – i.e., whether the partnership activity is not organized within a production or operational structure typical of a commercial enterprise.