Brazilian Supreme Court defines tax on media advertising

International Tax Review is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Brazilian Supreme Court defines tax on media advertising

Sponsored by

logo.png
Legal certainty to taxpayers in the planning of activities related to the insertion of advertising granted

Gabriel Caldiron Rezende and Thales D'luca Magagnin of Machado Associados discuss the highly anticipated Supreme Court decision on the taxation of advertising in some media.

On March 9 2022, the Brazilian Federal Supreme Court (STF) concluded the judgment of Direct Unconstitutionality Action (ADI) 6034, deciding that the insertion of advertising is a service subject to the municipal service tax (ISS), rather than a communication service, which would be subject to the state VAT (ICMS). In doing so, the Court settled a long-lasting controversy between the municipalities and the states, in which taxpayers were caught in the crossfire.

In the Brazilian tax system, ISS is generally levied on the provision of services by the municipalities, provided that the activity is listed as a taxable service in Supplementary Law 116/2003. On the other hand, communication services are subject to the ICMS; therefore, they are not subject to ISS.

According to the Brazilian tax system, the same activity cannot be simultaneously subject to ISS and ICMS. Therefore, the correct delineation of each economic activity and its respective taxation is of the utmost importance.

Background to the case

As previously discussed, the federal government issued Supplementary Law 157/2016, which introduced some activities in the list attached to Supplementary Law 116/2003, rendering them subject to the ISS. 

Among these new taxable activities was item 17.25 of the service list, which stands for the insertion of texts, drawings, and other advertising materials in any media (except books, newspapers, periodicals, radio broadcasting, and broadcasting of sounds and images with free reception).

However, such activity was historically considered by the states as a communication service, subject to the ICMS. Therefore, as predicted, the matter needed to be taken into court for a resolution.

To this effect, the state of Rio de Janeiro filed ADI 6034 to challenge the constitutionality of item 17.25 of the Supplementary Law 116/2003 service list. The Direct Action of Unconstitutionality stated that such activity is equal to the broadcasting of advertising, which is a communication service subject to the ICMS, and could not be listed as subject to the ISS.

In the judgment, reporting Justice Dias Toffoli argued in his vote that, although such activity is essential for the operation of the media service, it is a preparatory service for communication, not to be confused with communication itself. For this reason, the Justice said that it should not be subject to the ICMS. Thus, since this activity is not a communication service and is indicated on the list of services in Supplementary Law 116/2003, the insertion of advertising is subject to the ISS.

Despite the relevance of this decision, it still lacks some definitions around the advertising service and its related activities. In this judgment, the moment at which the activity ceases to be preparatory to the advertising service, and becomes a communication service subject to the ICMS, was not defined.

In any case, it is a very important decision and it solves a highly controversial matter, granting legal certainty to taxpayers in the planning of their activities related to the insertion of advertising.

 

Gabriel Caldiron Rezende 

Partner, Machado Associados

E: gcr@machadoassociados.com.br

Thales D'luca Magagnin

Associate, Machado Associados

E: tdm@machadoassociados.com.br

 

 

 

 



more across site & shared bottom lb ros

More from across our site

The US law firm’s tax counsel tells ITR about inspirations from a ‘legendary’ German tax scholar, perfecting riesling wine and what makes tax cool
Wopke Hoekstra also swore the EU would ‘hit back harder’ if faced with a trade war; in other news, a UK watchdog has launched an investigation into an audit completed by MHA
Other reasons included the complexity of reporting, resource constraints and interactions with tax administrations
Despite this boost for investors, the OECD also said that extensive reliance on income-based instruments across economies is concerning
A recent UK First-tier Tribunal decision highlights the broad application of an anti-avoidance rule to deny tax relief, say Robert Waterson and Matthew Cummings of Eversheds Sutherland
The world’s largest legal market is typically alive with activity, with tax firms jostling for position ahead of the World Tax Rankings and ITR Awards
Public funding will allow the firm to invest in lateral hires, technology and further bolt-on acquisitions, MHA said
William Paul is being replaced as IRS chief counsel just two months after starting, it is understood
Wopke Hoekstra implored US officials to ‘truly look into the facts’; in other news, the EU Council has reached a political agreement on DAC9
The US president’s flippant approach to international trade will cause chaos for corporations, but there are opportunities for intrepid tax advisers
Gift this article