.jpg)
The National Confederation of Services (CNS) filed a Direct Action of Unconstitutionality (ADI) 5576 at the Federal Supreme Court (STF), with a request for a preliminary injunction, against laws of the State of São Paulo that establish the incidence of the Tax on Circulation of Goods and Services (ICMS) on operations with computer programs. For the confederation, when demanding ICMS on operations with softwares the laws incur double taxation, creating a new hypothesis for the incidence of the tax. ABES, ASSESPRO and BRASSCOM are united in supporting the ADI filed by CNS.
CNS explains that operations with computer programs could never be taxed by ICMS, as they are already listed within the scope of the Tax on Services of Any Nature (ISS), as defined by Complementary Law 116/2003. “In this sense, the conflict between the normative acts of the State of São Paulo, rules issued by the State Executive Power of a strictly regulatory nature, and Complementary Law 116/2003, a national rule, from the National Congress, which gives the constitutional contours to the requirement of the ISS, tribute of municipal competence”.
The confederation reaffirms that the software, intangible and incorporeal, does not have the legal nature of merchandise, but of copyright and intellectual property, of which its creator is the holder. “Can't the software be considered a commodity, since it never becomes the property of its purchaser. The purchaser only has the right to use it, through a license/assignment granted by its creator, who is its real owner”, he explains.
In this way, since the incidence of ICMS presupposes the performance of a commercial operation, which has as characteristic the transfer of ownership of a certain merchandise, impossible for CNS, its incidence on operations of software.
In ADI 5576, the CNS requests, as a preliminary measure, the suspension of the effectiveness of article 3, item II, of Law 8198/1992 and of Decrees 61522/2015 and 61791/2016, all of the State of São Paulo. On the merits, it requires that the action to declare the unconstitutionality of the same rules be upheld. The rapporteur for the action is Minister Luís Roberto Barroso.
CNS explains that operations with computer programs could never be taxed by ICMS, as they are already listed within the scope of the Tax on Services of Any Nature (ISS), as defined by Complementary Law 116/2003. “In this sense, the conflict between the normative acts of the State of São Paulo, rules issued by the State Executive Power of a strictly regulatory nature, and Complementary Law 116/2003, a national rule, from the National Congress, which gives the constitutional contours to the requirement of the ISS, tribute of municipal competence”.
The confederation reaffirms that the software, intangible and incorporeal, does not have the legal nature of merchandise, but of copyright and intellectual property, of which its creator is the holder. “Can't the software be considered a commodity, since it never becomes the property of its purchaser. The purchaser only has the right to use it, through a license/assignment granted by its creator, who is its real owner”, he explains.
In this way, since the incidence of ICMS presupposes the performance of a commercial operation, which has as characteristic the transfer of ownership of a certain merchandise, impossible for CNS, its incidence on operations of software.
In ADI 5576, the CNS requests, as a preliminary measure, the suspension of the effectiveness of article 3, item II, of Law 8198/1992 and of Decrees 61522/2015 and 61791/2016, all of the State of São Paulo. On the merits, it requires that the action to declare the unconstitutionality of the same rules be upheld. The rapporteur for the action is Minister Luís Roberto Barroso.
Source: STF website
EN 
PT 
