Published agreement contradicts Complementary Law 116
Confaz published in the Official Gazette this Thursday (5) the ICMS Agreement 106/2017, which deals with the incidence of ICMS on transactions with digital goods, including software, programs, electronic games, applications, electronic files and the like, which are standardized , even if they have been or can be adapted, marketed through electronic data transfer (download).
As a result, there is a fear that the states of the federation, in default of the Federal Constitution, will launch measures aimed at taxing the download of digital goods, from the beginning of the Agreement, on April 1, 2018, even with several processes. of contestation in court.
The State of São Paulo was waiting for the publication of the agreement to start charging. According to São Paulo Decree nº 61.522/2015, ICMS will be charged that results in a tax burden equivalent to 5%. Decree No. 53,121/2016 established the same percentage in Rio Grande do Sul.
According to Manoel Antonio dos Santos, legal director of ABES, in an interview with Jornal Valor Econômico, the São Paulo decree is already being questioned in the Federal Supreme Court (STF).
For the entity, ICMS is not levied on software, but ISS, as Complementary Law 116 is clear as to the levy of ISS on software.
The STF itself has already decided that Confaz cannot define a new ICMS taxable event, which is exactly what happens in this case. In addition, this decision creates a tax conflict between different entities of the federation: states wanting to collect ICMS and municipalities insisting on collecting ISS.
“The new agreement changes nothing. We advise all members not to pay ICMS or issue an invoice. And, if fined, appeal to the Judiciary based on Complementary Law No. 116”, said the legal director.
See the full publication here.
As a result, there is a fear that the states of the federation, in default of the Federal Constitution, will launch measures aimed at taxing the download of digital goods, from the beginning of the Agreement, on April 1, 2018, even with several processes. of contestation in court.
The State of São Paulo was waiting for the publication of the agreement to start charging. According to São Paulo Decree nº 61.522/2015, ICMS will be charged that results in a tax burden equivalent to 5%. Decree No. 53,121/2016 established the same percentage in Rio Grande do Sul.
According to Manoel Antonio dos Santos, legal director of ABES, in an interview with Jornal Valor Econômico, the São Paulo decree is already being questioned in the Federal Supreme Court (STF).
For the entity, ICMS is not levied on software, but ISS, as Complementary Law 116 is clear as to the levy of ISS on software.
The STF itself has already decided that Confaz cannot define a new ICMS taxable event, which is exactly what happens in this case. In addition, this decision creates a tax conflict between different entities of the federation: states wanting to collect ICMS and municipalities insisting on collecting ISS.
“The new agreement changes nothing. We advise all members not to pay ICMS or issue an invoice. And, if fined, appeal to the Judiciary based on Complementary Law No. 116”, said the legal director.
See the full publication here.
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