In a webinar, ABES brought together representatives from Microsoft, the Municipal Finance Secretariat of SP and the National Confederation of Services to present perspectives for the segment if services are charged by ICMS
ABES - Brazilian Association of Software Companies held today (27/10/2020), in partnership with Migalhas, the webinar “Taxation of Software” to highlight the importance of judging the guidelines for Direct Unconstitutionality Actions (ADIs) 1945 and 5659, which started on 10/29 and will extend to the next week, by the Supreme Federal Court (STF), which may be decisive for the fostering of new companies that use technology intensely in this moment of digital transformation.
These ADIs deal with the possibility that software services, already taxed by ISS by express legal determination (based on Complementary Law 116/2003), may also be taxed by ICMS. Due to preliminary injunctions obtained, attempts to collect ICMS by the states were suspended until the judgment of this matter by the STF.
The software is already taxed up to 5% of ISS in their commercializations, for the right to enjoy the service, if it is also charged by ICMS by the states, 18% would be taxed on the commercialization of computer programs as a commodity and this would make the services more expensive and impact the competitiveness of Brazilian companies in foreign companies.
“It is important to understand that ICMS is the tax on transactions related to the circulation of goods and the ISS is levied on services of any nature. How am I going to acquire a software license by paying a few reais a year and if I fail to pay it is no longer mine? There is no commodity that if I fail to pay it will no longer be mine, so I am paying for the use, that is, an immaterial good ”, he affirmed Alberto Macedo, Coordinator GT Tax Reform of the Municipal Finance Secretariat of SP.
For Carolina Archanjo, Microsoft's fiscal director, the expectation for the STF's decision is great, since taxation by the states would bring no legal certainty, as current and future jurisdiction does not apply when faced with other layers of service than just licensing the software, but also data storage, processing and management, content availability, among others.
“The Organization for Economic Cooperation and Development recently published a document that suggests that Brazil focus on the elaboration of public policies for digital transformation, with the objective of increasing productivity and reducing inequalities. Strategic for the country's socioeconomic development. But for this to happen, it is essential that the Supreme Court make a decision that does not burden access to technological solutions, such as software, only then will we advance digitally in a less unequal way ”, explained during the event the President of ABES Rodolfo Fücher.
Second Saul Tourinho Leal, a lawyer at ABES, there is no reason for this double taxation. “What happens is that the information technology model brings hardware and software side by side with different legal natures, so with more access to these technological services, with the arrival of 5G, for example, nothing prevents devices physical, like our refrigerator, are digital and then start to be charged by the states ”.
“Nobody can live with this doubt any more, neither businessmen, nor lawyers, nor jurists. The matter has to be resolved and the moment has come, I hope that the ministers are duly inspired by the business issue of the companies and make the best decision tomorrow ”, concluded Ricardo Godoi, lawyer and representative of the National Confederation of Services (CNS).
To check the entire debate, visit: http://migalhas.uol.com.br/webinar/156/tributacao-de-software
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