*Jorge Sukarie
Most companies are aware that the irregular use of software licenses can lead to sanctions imposed by Brazilian legislation. However, a very common practice adopted by multinational companies, which is the use of Global Contracts signed with software manufacturers, requires some special care to guarantee the legal use of the software in the country. These contracts are nothing more than the licensing of computer programs for all Branches, Subsidiaries, Establishments domiciled in different countries, of this Multinational company, with the objective of better negotiation, centralization of acquisition or control.
In order to guide CIOs of local companies on the possible risk to which they may be exposed, ABES and BSA-The Software Alliance clarify how the software license agreements of multinational companies in Brazil need to be governed.
First, it is essential that the subsidiaries make sure that the contracts signed by the foreign parent expressly contain the granting of software licenses to companies in Brazil. Otherwise, these instruments will not be able to protect the local company from possible sanctions imposed by the Brazilian legislation applicable to the irregular use of software.
With the express mention in the agreement that the subsidiary is a licensed company, this agreement must transfer a certain amount of licenses, according to the actual number of machines, complying with the licensing rule of software vendors.
As for taxes, they must be collected in Brazil. Both in the use licenses of the contracts signed by the foreign parent company, as in the licenses eventually acquired directly by an end user outside the country, customs taxes of ICMS, IPI, PIS/PASEP, COFINS and Import Tax must be collected, in addition to the ISS Import and the Income Tax at Source.
The entities also point out the need for Brazilian subsidiaries to comply with ancillary tax obligations, such as, for example, filling in the Import Declaration, in cases of software customs clearance; issue and record incoming invoices; require and keep a copy of the invoice issued by the exporter of the software; make the accounting record of the licenses and taxes collected, recognizing the gains in the calculation of the Corporate Income Tax and CSSL whenever the entry entry is a revenue account (donation, other income, or the like).
In addition to legal sanctions, the lack of management of software assets can make companies vulnerable to malicious programs such as malware or viruses, which waste resources and result in serious damage to the technological infrastructure, business and reputation of companies. The companies also do not guarantee the support of the manufacturer and update of the versions of the programs, harming the operation of the business.
By increasing the use of legalized IT structures, companies operate in an environment of fair competition and the benefits will come with more innovation, job creation, establishment of new companies and high-tech jobs.
For more information or to download the educational letter, visit: www.empreendedorlegal.org.br.
Jorge Sukarie Neto is President of ABES
In order to guide CIOs of local companies on the possible risk to which they may be exposed, ABES and BSA-The Software Alliance clarify how the software license agreements of multinational companies in Brazil need to be governed.
First, it is essential that the subsidiaries make sure that the contracts signed by the foreign parent expressly contain the granting of software licenses to companies in Brazil. Otherwise, these instruments will not be able to protect the local company from possible sanctions imposed by the Brazilian legislation applicable to the irregular use of software.
With the express mention in the agreement that the subsidiary is a licensed company, this agreement must transfer a certain amount of licenses, according to the actual number of machines, complying with the licensing rule of software vendors.
As for taxes, they must be collected in Brazil. Both in the use licenses of the contracts signed by the foreign parent company, as in the licenses eventually acquired directly by an end user outside the country, customs taxes of ICMS, IPI, PIS/PASEP, COFINS and Import Tax must be collected, in addition to the ISS Import and the Income Tax at Source.
The entities also point out the need for Brazilian subsidiaries to comply with ancillary tax obligations, such as, for example, filling in the Import Declaration, in cases of software customs clearance; issue and record incoming invoices; require and keep a copy of the invoice issued by the exporter of the software; make the accounting record of the licenses and taxes collected, recognizing the gains in the calculation of the Corporate Income Tax and CSSL whenever the entry entry is a revenue account (donation, other income, or the like).
In addition to legal sanctions, the lack of management of software assets can make companies vulnerable to malicious programs such as malware or viruses, which waste resources and result in serious damage to the technological infrastructure, business and reputation of companies. The companies also do not guarantee the support of the manufacturer and update of the versions of the programs, harming the operation of the business.
By increasing the use of legalized IT structures, companies operate in an environment of fair competition and the benefits will come with more innovation, job creation, establishment of new companies and high-tech jobs.
For more information or to download the educational letter, visit: www.empreendedorlegal.org.br.
Jorge Sukarie Neto is President of ABES
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