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By Jorge Sukarie, Chairman of the Board of ABES and Brasoftware
The Software Sector is frightened by a problem that seemed pacified more than 25 years ago, similar to what has been happening with the Health Sector, which has been dealing with diseases eradicated for decades, such as measles, polio and rubella. The Government of the State of São Paulo decided to return the ICMS tax on software operations, which has not happened since 1992. Or, at least it did not do it significantly, since until 2015 it charged on a symbolic amount.
This discussion, which had been dormant for many years, recently surfaced with the publication of several legal instruments, among them, the ICMS Agreement 106 of the CONFAZ (National Council of Farm Policy), which guides the collection of ICMS by State Farms in electronic transfer operations of standardized software, and some State Decrees, which make the regulation of this Agreement in the States to define the details of the collection of the ICMS in these operations.
Retrieving a little bit of history, between 1989 and 1992, a strong tax conflict between the software companies and the State Government took place in São Paulo regarding the requirement of ICMS in operations with computer programs. Other states tried to take advantage of this "opportunity" and published rules designed to "attract" software companies to their territories. Santa Catarina, for example, declared the non-levy of ICMS on software operations. ABES (Brazilian Association of Software Companies) sought support from the judiciary, sponsoring 5 lawsuits filed by members, supporting the non-imposition of ICMS. All of these actions were deemed valid.
The then Governor of São Paulo, Luiz Antônio Fleury Filho, negotiated a conciliatory alternative with the sector, issuing a Law exempting the payment of ICMS in relation to the operations that occurred up to that date. It also issued a decree adding an article to the ICMS Regulation that defined the calculation basis for the collection of this tax, which would be twice the market value of its IT support. Which generated a symbolic value of ICMS to be collected by companies in the sector, thus resolving the dispute.
Other units of the Federation (including Minas Gerais, Paraná, Rio Grande do Sul, Brasilia, Rio de Janeiro) have published legal norms with the same scope, restricting the collection of ICMS in operations such as software to the value of computer support, thus generating a certain security for companies.
This stability was reinforced by a decision of the STF in 1999, where it was decided that on the operations of "licensing or assignment of the right to use computer programs" states cannot effectively institute ICMS; and there is no incidence of ICMS on software operations, except in the cases of resale of physical support containing the software.
In 2003, Complementary Law No. 116 was enacted, whose list of services taxed by the ISS expressly mentioned the operations for the elaboration of "custom-made" software (item 1.04 of the list: "elaboration of computer programs, including electronic games"), regarding the economic exploitation of software called "standardized" or "multiple copies" (item 1.05 of the list: "Licensing or assignment of right to use computer programs").
Complementary Law 116 provides that, even if the software is accompanied by a physical medium, it should not be subject to the ICMS. Therefore, even the collection of this tax practiced by the State of São Paulo until recently - based on computer support - was not provided for in the Federal Legislation. Even so, some software companies established in the State opted to collect the ICMS because it is a low tax amount, even though they also collected the ISS on the total value of the transaction, thus suffering double taxation in part of the amount.
The recent editions of CONFAZ agreement 106, and some State Decrees that establish the collection of ICMS in software operations, through electronic data transfer, ended up at the STF again, through some direct actions of unconstitutionality against its collection. One of them against the State of Mato Grosso was ruled by Minister Carmen Lúcia to be voted on August 22, and there are two other ADINs, against the Decrees of São Paulo and Minas Gerais on the same theme that should end up being included in the decision .
Another scenario that demonstrates the legal uncertainty that companies in a sector that relies on Technology are obliged to go through as a transforming agent and as an instrument to leverage business in all sectors of the economy. Now, we can only wait for the STF to determine whether the tax due on these operations with software through electronic data transfer will be liable to ISS, as defined by Complementary Law 116, which companies have always respected. Or to the ICMS, defined through the agreement of a body that does not have competence for the Constitution to create new taxes. You have to wait and see.
This discussion, which had been dormant for many years, recently surfaced with the publication of several legal instruments, among them, the ICMS Agreement 106 of the CONFAZ (National Council of Farm Policy), which guides the collection of ICMS by State Farms in electronic transfer operations of standardized software, and some State Decrees, which make the regulation of this Agreement in the States to define the details of the collection of the ICMS in these operations.
Retrieving a little bit of history, between 1989 and 1992, a strong tax conflict between the software companies and the State Government took place in São Paulo regarding the requirement of ICMS in operations with computer programs. Other states tried to take advantage of this "opportunity" and published rules designed to "attract" software companies to their territories. Santa Catarina, for example, declared the non-levy of ICMS on software operations. ABES (Brazilian Association of Software Companies) sought support from the judiciary, sponsoring 5 lawsuits filed by members, supporting the non-imposition of ICMS. All of these actions were deemed valid.
The then Governor of São Paulo, Luiz Antônio Fleury Filho, negotiated a conciliatory alternative with the sector, issuing a Law exempting the payment of ICMS in relation to the operations that occurred up to that date. It also issued a decree adding an article to the ICMS Regulation that defined the calculation basis for the collection of this tax, which would be twice the market value of its IT support. Which generated a symbolic value of ICMS to be collected by companies in the sector, thus resolving the dispute.
Other units of the Federation (including Minas Gerais, Paraná, Rio Grande do Sul, Brasilia, Rio de Janeiro) have published legal norms with the same scope, restricting the collection of ICMS in operations such as software to the value of computer support, thus generating a certain security for companies.
This stability was reinforced by a decision of the STF in 1999, where it was decided that on the operations of "licensing or assignment of the right to use computer programs" states cannot effectively institute ICMS; and there is no incidence of ICMS on software operations, except in the cases of resale of physical support containing the software.
In 2003, Complementary Law No. 116 was enacted, whose list of services taxed by the ISS expressly mentioned the operations for the elaboration of "custom-made" software (item 1.04 of the list: "elaboration of computer programs, including electronic games"), regarding the economic exploitation of software called "standardized" or "multiple copies" (item 1.05 of the list: "Licensing or assignment of right to use computer programs").
Complementary Law 116 provides that, even if the software is accompanied by a physical medium, it should not be subject to the ICMS. Therefore, even the collection of this tax practiced by the State of São Paulo until recently - based on computer support - was not provided for in the Federal Legislation. Even so, some software companies established in the State opted to collect the ICMS because it is a low tax amount, even though they also collected the ISS on the total value of the transaction, thus suffering double taxation in part of the amount.
The recent editions of CONFAZ agreement 106, and some State Decrees that establish the collection of ICMS in software operations, through electronic data transfer, ended up at the STF again, through some direct actions of unconstitutionality against its collection. One of them against the State of Mato Grosso was ruled by Minister Carmen Lúcia to be voted on August 22, and there are two other ADINs, against the Decrees of São Paulo and Minas Gerais on the same theme that should end up being included in the decision .
Another scenario that demonstrates the legal uncertainty that companies in a sector that relies on Technology are obliged to go through as a transforming agent and as an instrument to leverage business in all sectors of the economy. Now, we can only wait for the STF to determine whether the tax due on these operations with software through electronic data transfer will be liable to ISS, as defined by Complementary Law 116, which companies have always respected. Or to the ICMS, defined through the agreement of a body that does not have competence for the Constitution to create new taxes. You have to wait and see.
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