ABES considers fundamental result for the technology segment, which will have the opportunity to increase productivity in several sectors of the economy
On Wednesday afternoon (24), the Supreme Federal Court (STF) defined how the decision established by the ISS levy on software operations should be applied. The modulation of effects, which had been pending last Thursday (18) after the decision of the agency, now applies both to the product called “off the shelf”, sold at retail, and to the one made available by order.
For ABES - Brazilian Association of Software Companies, the decision to modulate effects is very important. “I would like to congratulate the Supreme Court for this conclusion, which will certainly favor the technology sector. Avoiding more legal battles and restoring legal security, which is fundamental for the attractiveness of investments for the Brazilian technology sector and its dynamism. Consequently, we will have more innovative solutions that will certainly increase productivity in several sectors of the economy ”, says Rodolfo Fücher, president of the entity.
With the intention of preventing the issue from being judicialized again, solutions were fixed for eight different situations:
- Companies that have already collected ICMS will not be able to ask the States to return the amounts paid in error, just as the municipalities will not be able to charge taxpayers the ISS.
- Those who have collected ISS in the past will have their payments validated and will not be able to collect from the States.
- Companies that have not paid any of the two taxes will be subject to the collection of ISS only and must respect the five-year term of the statute of limitations.
- Those who have paid the two taxes will be able to claim back the amounts paid to the States.
- Judges should apply the new understanding of the STF, of the incidence of ISS to operations with software, for companies that have lawsuits in progress against the States.
- Lawsuits filed by states against taxpayers who did not collect the ICMS should be extinguished, with a win for the companies.
- For the collection actions brought by the municipalities, the new understanding of the STF should also be applied, thus confirming the ISS debt.
- The actions brought by the taxpayers against the municipalities will lose the cause, since the new understanding of the STF will be applied.
“The modulation in this case is emblematic, because, in a sophistication never used, it advanced eight hypotheses that would generate unnecessary future judicializations. The usefulness of the judgment was guaranteed and the ISS reaffirmed as being the tax of these operations ”, completes Saul Tourinho Leal, legal advisor at ABES, who participated in the case representing the association.
For the legal director of Abes, Manoel Antonio dos Santos, the decision of the STF for the incidence of ISS is the most significant achievement of the IT sector in the last three decades, since it accurately reflects the legal and constitutional framework in force. "The great merit of the Supreme Court in this case was bringing legal certainty and he did it with mastery because he even took care to modulate the effects of the decision, for the various existing conflicts on the subject", he concludes.
About ABES
ABES, Brazilian Association of Software Companies, aims to contribute to the construction of a more digital and less unequal Brazil, in which information technology plays a fundamental role in the democratization of knowledge and the creation of new opportunities for all. In this sense, it aims to ensure a business environment conducive to innovation, ethical, sustainable, dynamic and globally competitive, always aligned with its mission of connecting, guiding, protecting and developing the Brazilian information technology market.
Since its foundation in September 1986, ABES has sought to be relevant to its associates and a national and international reference in the technology sector. Currently, the entity represents approximately 2 thousand companies, which total about 85% of the revenue of the software and services segment in Brazil, distributed in 22 Brazilian states and the Federal District, responsible for the generation of more than 208 thousand direct jobs and an annual revenue around 63.7 billion in 2019.
Access the ABES Portal – https://www.abes.org.br or speak to the Relationship Center: +55 (11) 2161-2833.
ABES - Press contacts:
Weber Shandwick Brasil - abes@webershandwick.com
Paula Boracini - +55 (11) 98415-0314
Fernanda Araujo - +55 (11) 97205-7806
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