Orientadores

Advisors

Dynamic and updated legal guidance

O “ABES Legal Advisor” is a bulletin published by the Association that offers members quality analysis on various legal, regulatory and tax aspects related to the sector, such as software imports, preparation of national and international contracts, incidence and payment of taxes, financial remittances abroad, particularities of the bookkeeping for software companies and assistance in interpreting government measures, through periodicals aimed at the sector and produced exclusively by lawyers hired by ABES.

Below is a preview of the advisors. To access the full content, click here.

2023

2023/06 - JUNE/2023 - COSIT CONSULTATION SOLUTION No. 107, OF JUNE 6, 2023 - ACQUISITION OF SOFTWARE LICENSE ABROAD – This guide deals with taxation on amounts paid abroad, BY END USER, for the purpose of acquiring or renewing SOFTWARE USE LICENSE, that is, it handles exclusively the acquisition of software for its own use, aimed at the final consumer.

2023/04 - APRIL/2023 - COSIT CONSULTATION SOLUTION No. 36, OF FEBRUARY 7, 2023 - HARMFUL IMPACTS FOR THE SOFTWARE SECTOR – This advisor analyzes the main impacts of the solution for the software sector.

2023/03 - MARCH/2023 - RESOLUTION CD/ANPD No. 4, OF FEBRUARY 24, 2023 - DOSIMETRY AND APPLICATION OF SANCTIONS – This advisor deals with the Regulation of Dosimetry and Application of Administrative Sanctions, whose main purpose is to define the criteria and parameters for sanctions, as well as the forms and dosimetries for calculating the value of fines, in addition to improving the Regulation of the Process of Inspection and Sanctioning Administrative Process within the scope of the National Data Protection Authority.

2022

2022/11 - NOVEMBER/2022 - Law 14,457 OF 09/21/2022 - Emprega + Mulheres Program – This Advisor refers to Law 14,457 of 09/21/2022, resulting from the conversion into law of Provisional Measure 1,116/2022, which has as its main focus the insertion and maintenance of female workers in the labor market.

2022/09 - SEPTEMBER/2022 - Law 14,442 OF 09/02/2022 - Main Changes to the Telework and Food Allowance Law – This Advisor refers to Law 14442 published on 09/02/22, resulting from the conversion of MP 1108/2022, and deals with aspects related to the hiring and payment of food aid, as well as teleworking.

2022/08 - AUGUST/2022 - Decree no. 11,129/2022 amends the regulation of the Anti-Corruption Law – This Advisor aims to present the main points of Decree No. 11,129, issued on July 11, 2022, as a new regulation for Law No. 12,846/2013 – Anti-Corruption Law -, revoking decree no. 8,240/15.

2022/04 - APRIL/2022 - CHANGE IN THE ISS RATE IN RIO DE JANEIRO – This advisor highlights the possibility of reducing the ISS rate for the technology sector in the city of Rio de Janeiro.

2022/03 - MARCH/2022 - RESOLUTION CD/ANPD No. 2, OF JANUARY 27, 2022 – This advisor explains the differentiated legal treatment and simplified procedures for small businesses, according to Resolution CD/ANPD nº2, of January 27, 2022.

2021

2021/11 – NOVEMBER/2014 – 2nd EDITION NOVEMBER/ 2021 – TAX TREATMENT BASED ON AGREEMENTS OR CONVENTIONS TO AVOID DOUBLE TAXATION – This advisor deals with agreements and conventions that avoid double taxation of remittances abroad.

2021/10 - NO ICMS levied on SOFTWARE OPERATIONS - This advisor deals with the STF's decision on the non-levy of ICMS on software operations.

2021/10 - OCTOBER/2021 - LAW No. 14.195, OF AUGUST 26, 2021 – This advisor seeks to summarize the main changes in the business environment, in order to help Associates adapt more easily to the new standard. Law no. 14,195 originates from Provisional Measure 1,040, of March 2021, called “MP for Business Improvement”. It amends a series of legal diplomas, with special emphasis on the Civil Code, Code of Civil Procedure and the Corporation Law.

2021/09 – FEBRUARY/2004 – 2nd EDITION SEPTEMBER/2021 – LAW No. 10,833, OF DECEMBER 29, 2003 – AMENDS THE COFINS LEGISLATION and LIST OF RETENTION HYPOTHESES AT THE CSLL, COFINS AND PIS-PASEP SOURCE – This advisor comments on the calculations in the cumulative and non-cumulative systems of PIS/PASEP AND COFINS and lists cases of withholding tax for CSLL, COFINS AND PIS-PASEP.

2021/08 - SHIPMENTS IN PAYMENT OF DISTRIBUTION RIGHTS OR SOFTWARE MARKETING RIGHTS – This advisor instructs members on how to correctly complete the DARF for remittances in payment for distribution rights or software marketing rights and explains the scope of the terms 'commercialization rights' and/or 'distribution rights' and their distinction in relation to royalties.

2021/07 - NEW BIDDING LAW - LAW N. 14,133 OF APRIL 1, 2021 – This advisor explains the bidding process and its phases, brings the contracting modalities, the judgment criteria and the non-enforceability hypotheses, as other matters of interest to the members.

2021/06 - LEGAL FRAMEWORK OF STARTUPS – This advisor comments on Complementary Law n. 182, sanctioned by the Presidency of the Republic on June 1, 2021, called Marco Legal das Startups.

2020/05 - Version 2, of 03/02/2021 - DECLARATION OF BRAZILIAN CAPITAL ABROAD - CBE - This advisor comments on the rules of the Central Bank of Brazil that institute and regulate the Declaration of Brazilian Capitals Abroad - CBE.

2021/02 - SCOPE OF THE STF DECISION THAT JUDGED THE ADIs, DECLARING THAT NO ICMS TAXES ON OPERATIONS WITH SOFTWARE (ISS) - This advisor provides information on the judgment of ADIs No. 1945-MT and 5659-SP on 11/11/2020 which declares ICMS unconstitutional in licensing or assigning software use.

2020

2020/12 - FISCAL TRANSPARENCY LAW - Information on taxes levied on the supply of goods and services.

2020/07 – “SERVICES IMPORTS” - This advisor brings the definition of Service Imports, since the expression “import of services ” it must be received and interpreted with reservations, in addition to the taxes on these operations.

2020/06 – COVID-19 TRANSMISSION PREVENTION AND CONTROL MEASURES IN THE WORKPLACE - This advisor comments on Joint Ordinance No. 20 of the Ministry of Economy / Special Secretariat for Social Security and Labor, published on June 19, 2020 in the Official Gazette of the Union, which contains the prevention and control measures for the transmission of Covid-19 in the environment of work.

Teleworking Policy - The ABES team developed a Teleworking Policy to assist companies in defining guidelines for implementing the home office.

2020/05 – DECLARATION OF BRAZILIAN CAPITAL ABROAD - CBE - This advisor comments on the rules of the Central Bank of Brazil that institute and regulate the Declaration of Brazilian Capitals Abroad - CBE.

2020/04 – TAX CHANGES FACING THE “CORONAVIRUS” - This advisor comments on the measures taken by the Federal Government in the tax sphere due to the declaration of a pandemic to the new “coronavirus” by the World Health Organization (WHO).

2020/03 – TEMPORARY CHANGES IN THE CLT - PROVISIONAL MEASURE 927 - This advisor complements general guidelines for the management of employment contracts during the Covid-19 quarantine due to the publication of Provisional Measures No. 927 of 3/22/2020 and No. 928, of 3/23/2020, compiling the edited measures for job preservation, facing the situation of public calamity, social responsibility in combating the spread of the Covid-19 pandemic, with the temporary changes of the CLT.

2019

2019/11 – ILLEGALITY OF STATE DECREE No. 63.099 / 17, OF SÃO PAULO, WHICH EXTENDED THE HYPOTHESIS OF TAX INCIDENCE NOT EXPRESSLY CONTAINED IN STATE LAW 6.374 / 89 - The advisor was prepared in view of the recent judicial decisions that reaffirm the non-impact of ICMS on software operations.

2019/10 – COPYRIGHT PROTECTION AND COMPUTER PROGRAM REGISTRATION - This advisor has the purpose of commenting on the laws that deal with copyright protection, bringing the moment when the protection and the power to register the computer program begins, as well as its procedure.

2019/09 – TAXES DUE TO SOFTWARE MARKETING - Update due to a new complementary law.

2019/08 – “QUINQUENAL AND ANNUAL CENSUS OF FOREIGN CAPITALS IN THE COUNTRY - BANCO CENTRAL DO BRASIL”. PENALTY FOR FAILURE TO PROVIDE OR PROVIDE FALSE, INCOMPLETE OR INCORRECT INFORMATION - This advisor provides clarification on the norm that establishes the FIVE-YEAR AND ANNUAL CENSUS OF FOREIGN CAPITALS IN THE COUNTRY - BANCO CENTRAL DO BRASIL, whose Declaration of the Annual Foreign Capital Census, relative to the base year of 2018, must be submitted between July 1st until August 15th, 2019, until 18:00, in order not to occur in fines.

2019/07 – SIMPLE INNOVATION COMPANY - SIMPLE CREDIT COMPANY (ESC) - SUPPORT FOR INNOVATION - COMPLEMENTARY LAW Nº 167 OF 2019 - It deals with two new types of companies: 1) Simple for Innovation and 2) Simple for Credit, so we point out in this advisor the characteristics of each one.

2019/06 – MP Nº 881 2019 - DECLARATION OF ECONOMIC FREEDOM RIGHTS - This student analyzes the normative content of Provisional Measure nº 881/2019, known as “MP for ECONOMIC FREEDOM”, and points out possible impacts in the tax scope.

2018

2018/11 – CARF JUDGMENT No. 3201003.207 - Provides an analysis of CARF JUDGMENT No. 3201003.207, which has the following menu: “The commercialization or distribution of a computer program (software) is only subject to CIDE when there is proof in the records that there was a TRANSFER OF CORRESPONDING TECHNOLOGY. The fact that it is personalized / customized software does not authorize the tax authorities to assume that there has been technology transfer ”.

2018/10 – PROTECTION OF PERSONAL DATA - LAW Nº 13.709 / 2018 - Highlights the main points brought by the law, such as sanctions and governance measures that companies and organizations in general must adopt to avoid violations. The law will come into force 18 (eighteen) months after its publication (therefore, it will take effect from February 2020).

2018/07 – LABOR REFORM - LAW No. 13,467 / 2017 PART 3 - Third advisor on Labor Reform, Law No. 13,467 / 2017, which came into force on 11/11/2017. Its objective is to inform the associates of the main changes brought about by the new legislation and was prepared based on the work of Marlos Augusto Melek, “Labor! What has changed? - Labor Reform 2017 ”.

2018/02 – CONFAZ AGREEMENTS No. 181/2015 AND 106/2017 AND DECREE No. 61,791 / 2016 and No. 63,099 OF 12/22/2017 - Advisor analyzes the rules and requirements contained in the Confaz Agreements and decrees mentioned in relation to the States' attempt to create a legal framework that would allow the collection of ICMS on the economic exploitation of software.

2018/01 – SÃO PAULO MUNICIPAL LAW No. 16,757 / 2017 - UNIFIES ISS ISSUES AND CREATES NEW ITEMS - COMPUTER ACTIVITIES - Advisor addresses the equalization of ISS rates at 2.9% for all items of computer services and the like in the city of São Paulo (SP), according to municipal law No. 16,757 / 2017.

2017

2017/11 – LABOR REFORM - LAW No. 13.467 / 2017 PART 2 - Second advisor on Labor Reform, Law No. 13,467 / 2017, which came into force on 11/11/2017. Its objective is to inform the associates of the main changes brought about by the new legislation and was prepared based on the work of Marlos Augusto Melek, “Labor! What has changed? - Labor Reform 2017 ”.

2017/10 – LABOR REFORM - LAW No. 13,467 / 2017 PART 1 - First advisor on Labor Reform, Law No. 13,467 / 2017, which came into force on 11/11/2017, which aims to inform members of the main changes brought about by the new legislation and was prepared based on the work of Marlos Augusto Melek, “Labor! What has changed? - Labor Reform 2017 ”.

2017/06 – PRESIDENTIAL VETO Nº 52/2016 REJECTED BY THE NATIONAL CONGRESS - COMPLEMENTARY LAW Nº 157/2016 - ISS COLLECTION PLACE - Addresses the changes with the new ISS collection law.

2017/05 – COSIT DIVERGENCE SOLUTION No. 18 of 03/27/2017 - INCOME TAX WITHHOLD AT SOURCE ON SOFTWARE COMMERCIALIZATION OR DISTRIBUTION RIGHTS - deals with the Withholding Income Tax on software distribution rights or software commercialization rights and also comments and indicates how associates should proceed before their represented companies and comments on some inaccuracies that tarnish the reasoning of Divergence Solution nº 18 / 2017.

2017/04 – LAW 13.429 / 2017 - "THIRD PARTY" - WORK RELATIONSHIP IN THE COMPANY PROVIDING SERVICES TO THIRD PARTIES - Clarifications on the new outsourcing law and contract management.

2017/03 – INSS WITHHELD ON WORK ASSIGNMENT - This legal analysis provides the definition of "assignment of labor", "contract" and a restricted list of activities subject to INSS withholding, as well as clarifying when the contractor is exempt from making the withholding.

2017/02 – TAX REGULARIZATION PROGRAM - Advisor clarifies about the Tax Regularization Program (PRT), which aims to renegotiate, under special conditions, any debts with the National Treasury. The program was instituted by Provisional Measure No. 766 04/01/2017 and regulated by Normative Instruction No. 1687 of the Federal Revenue, published in the Federal Official Gazette on 02/01/2017, and by the Ordinance of National Treasury Attorney 152, published in the official diary on 02/03/2017.

2017/01 – COMPLEMENTARY LAW No. 157/2017 - This advisor presents an analysis on COMPLEMENTARY LAW No. 157/2017 that alters COMPLEMENTARY LAW No. 116/03 which provides for ISS - TAX ON SERVICE.

2016

2016/12 – LEGAL STATUS OF STATE COMPANIES - Analysis of the law of state-owned companies that impacts software companies and IT services whose clients are State-owned companies, with clarifications on rules and the main news regarding bids.

2016/10 – JUDICIAL MEASURES TO RELEASE ICMS REQUIREMENTS IN SOFTWARE OPERATIONS –This advisor brings members some information about the judicial interventions that discuss the unconstitutionality of the ICMS levy on operations with software programs.

2016/07 - QUINQUENAL AND ANNUAL CENSUS OF FOREIGN CAPITALS IN THE COUNTRY 2016 (Base year: 2015) - Established by the Central Bank of Brazil Circular No. 3,795, published in the Federal Official Gazette on 06/17/2016. This census aims to collect information on the country's external liabilities, which include, among others, foreign direct investments and foreign debt instruments. The data collected allows the Central Bank to compile statistics and subsidize the formulation of economic policies.

2016/07 - CODES FOR CLASSIFICATION OF OPERATIONS IN THE EXCHANGE MARKET - CIRCULAR OF BANCO CENTRAL DO BRASIL Nº 3,690, OF 16/12/2013 - Clarifications on the codes to be mentioned in the foreign exchange contracts for all remittances or payments made abroad to the software owner, as computer program distribution rights in Brazil.

2016/05 - SPECIAL REGIME FOR EXCHANGE AND TAX REGULATION - RERCT - Advisor provides clarifications on the laws that establish the rules for the voluntary declaration of resources, goods or rights of lawful origin, not declared or incorrectly declared, remitted or kept abroad.

2016/03 - CROWDFUNDING - LEGAL CONSIDERATIONS ABOUT COLLECTIVE FINANCING IN THE BRAZILIAN MARKET - This advisor presents considerations on the legal, tax and commercial aspects that involve collective financing in the Brazilian market, a practice known internationally as “crowdfunding”.

2016/02 - ILLEGALITY OF WITHDRAWAL OF MERCHANDISE AS A COERCITIVE MEANS FOR PAYING TAXES - This newsletter clarifies the illegality of the Tax Authorities' actions that promote the retention of goods, in order to coerce the taxpayer to pay the customs tax.

2015

2015/12 - OBLIGATION OF THE LEGAL RESERVE OF QUOTAS FOR PEOPLE WITH SPECIAL NEEDS FOR COMPANIES - This advisor clarifies the legislation that governs the hiring of people with special needs by companies, with guidance on calculating quotas, selection process and other general aspects.

2015/11 - INFORMATION TECHNOLOGY AND INFORMATION AND COMMUNICATION TECHNOLOGY SERVICE COMPANIES - CONTRIBUTION ON THE 13TH SALARY OF 2015 ACCORDING TO LAW 13.161 / 2015 - Comment on the term established in art. 7 of Law No. 13,161 of 08/31/2015 as well as the contribution on the 13th salary for companies that opt for the new regime.

2015/10 - DECREE No. 61,522 OF 9/29/2015 REPEALS DECREE No. 51,169 / 2007 - ICMS CALCULATION BASE IN OPERATIONS WITH COMPUTER PROGRAMS - Analyzes the repeal of Decree No. 61,522, which established the specific calculation base for operations with software in the state of São Paulo, and presents ABES guidelines on the subject.

2015/09: “RESERVE” OF THE PAYROLL (LAW No. 13,161 / 2015) AND EMPLOYMENT PROTECTION PROGRAM (PPE) - MP 680/2015 - This document provides clarifications to IT companies on the payroll tax return (LEI Nº 13.161 / 2015) regarding the employer's social security contribution; and on the procedures for joining the PPE - Employment Protection Program, established by MP 680/2015.

2015/08 - TAX LITIGATION REDUCTION PROGRAM - PRORELIT AND MAIN CHANGES TO THE E-SOCIAL GUIDANCE MANUAL VERSION 2.1 - This document addresses two issues: PRORELIT - Tax Litigation Reduction Program, instituted by MP on 07/15; and the eSocial Guidance Manual version 2.1, launched on 07/15, which presents new guidelines on this federal project.

2015/07 - ANTICORRUPTION LAW REGULATION - DECREE 8,420 / 2015 - This advisor clarifies about Decree 8,420 / 2015, which regulates law 12,846 / 2013, popularly called the Anti-Corruption Law, which deals with the administrative accountability of legal entities, for the practice of acts against public administration, national or foreign. It provides information on the sanctions, leniency agreements, compliance programs and regulations of the National Register of Suspended and Suspended Companies (“CEIS”) and the National Register of Punished Companies (“CNEP”), among other topics.

2015/06 - Income Tax Collection Code at Source 9427 - This advisor explains about the use of code 9427 for withholding income tax in remittances in payment of distribution rights or marketing rights for computer programs.

2015/05 - Debate for the Draft Law for the Protection of Personal Data - Questions and Answers and Contributions - This Legal Advisor presents the main themes and issues that are part of the debate on the preliminary draft of the Law for the Protection of Personal Data, which is being evaluated by the National Congress.

2015/04 - Marco Civil Regulation Debate - This advisor gathers important information and clarifications so that the members can understand the legislative scenario and the main themes addressed in the debate for the regulation of the Marco Civil da internet in Brazil.

2015/03 – Resolution No. 01 of the Ministry of Labor and Employment and Social - This advisor addresses version 2.0 of the eSocial Guidance Manual (MOS), published by the MINISTRY OF LABOR AND EMPLOYMENT in February 2015, with information on the general guidelines, deadlines and other rules established by the Federal Government.

2015/02 - Law 16.097 and Decree nº 55.828 - This advisor provides clarification on the incentive installment program (PPI 2014) in the city of São Paulo

2014

2014/12 - STF decision for FGTS collection - Informs about STF decision regarding the five-year prescription for FGTS collection

2014/11 - Interpretative Declaratory Act No. 5/2014 - It discusses Interpretative Declaratory Act No. 5/2014, which provides for tax treatment based on agreements or conventions to avoid double taxation.

2014/10 - Decree 55461 - Tech Sampa - This advisor addresses the Tech Sampa policy, instituted in August 2014.

2014/08 - Complementary Law nº 147 - Super Simples - This Advisor comments on the main changes affecting the IT sector, introduced by Complementary Law nº 147, enacted on 07/07/2014, which modified the legislation of Simples Nacional and altered LC 123/2006.

2014/05 - DECREE 8.135 - Communications from the Administration - This advisor addresses some general aspects established by Decree No. 8,135 / 2013, which provides for data communications from the direct, autonomous and foundational federal public administration, and by Ordinance No. 141, of the Ministries of Planning, Budget and Management, Communications and of Defense, which regulates the contracting of services related to data communication and information technology services.

2014/04 - LAW “Anticorruption” - Compliance programs in corporations - Since 12/29/2014, Law 12.846 / 13, popularly called “Anticorruption Law”, is in effect. This study interprets the law and seeks to reveal the intention of the legislator regarding the theme that gives title to this new norm and, in the last paragraphs, offers guidance to members on how to proceed to avoid the practice of typified infractions.

2014/03 - CERTICS - Margin of preference - It legally analyzes Decree nº 8.186, of 17/01/2014 with a special focus on its limited scope, since CERTICS does not lend itself to certify “SOFTWARE NACIONAL”, nor “National Service”, but only reveals “software result of DEVELOPMENT AND technological INNOVATION carried out in the country ”and this quality does not enable the software to obtain“ margin of preference ”(basic) for national services referred to in paragraph 5, of article 3, of Law 8.666, a qualification that is indispensable to claim the “Additional margin of preference” dealt with in paragraph 7 of that same article 3.

2013

2013/09 - SISCOSERV- Transactions with Intangibles - New guidelines regarding operations on intangibles, in view of RFB Normative Instruction 1,336, published on February 26, 2013, which introduced significant changes regarding the topic.

2013/08 - Employee participation in the company's profits or results - Information and guidance on the recent changes promoted in Law 10,101 of 12/19/2000, which provides for the participation of employees in the profits or results of companies, through the edition of Law 12,832, of 6/20/2013.

2013/07 – Brazilian Software - CERTICS Certification - Provides clarifications on the CERTICS certificate and how associates and partners can prepare and learn about the new software evaluation methodology.

2013/06 - Actions for Copyright Infringement - Information and guidance on software piracy and the articles of the current legislation that indicate the infringements of the copyright of the computer program committed and the appropriate judicial measures.

2013/03 - Complaints and Representations to the Courts of Account - The Associates will have access, in this Legal Advisor, to the rules and procedures that guide the presentation of complaints and representations to the Courts of Account, aiming at investigating fraud in the bidding law or any other acts that may imply abuse of economic power. The Constitution guarantees to any citizen, political party, association or union, the right to denounce illegal and uneconomic acts practiced by public administrators in almost all federal units. State and municipal laws grant a similar right.

2012

2012/12 - IRS publishes Normative Instruction No. 1,298 on transactions with intangibles - On October 24, IN No. 1,298 was published by the Federal Revenue of Brazil, which ratifies and amends Normative Instruction RFB No. 1,277, of June 28, 2012, which it instituted for individuals and companies that carry out export and import operations of services and intangibles the obligation to provide information.

2012/05 - Municipality of São Paulo amends ISS Regulation - Decree 53.151 / 12 - On May 18, 2012, the Municipality of São Paulo, through Decree No. 53,151, published the new Regulation for Services Tax (ISS). The Decree brought some changes that are of interest to the Technology Sector.

2012/01 - Law No. 12,551 and the “warning” institute - The recent Law No. 12.551 equates, for legal purposes, subordination exercised by telematic and computerized means and subordination exercised by personal and direct means. To facilitate the interpretation of the subject, the advisor makes an analysis of these two elements contained in the law (subordination and telematics), highlighting the two innovations contained in the law.

2011

2011/11 - Law No. 12,546, of 12/14/2011 - Contributions to INSS - Information and Communication Technology Service Companies - This Advisor aims to offer initial subsidies regarding Law No. 12,546, of 12/14/2011, since up to the date of its disclosure, the law had not yet been regulated.

2011/12 - Interpretative Declaratory Act No. 42, of 12/15/2011 - Brazilian Federal Revenue Service - Complements the ABES Advisor of December / 2011, specifically dealing with the contribution to the INSS on the 13th Salary of 2011.

2011/09 - Legal Opinion on Bidding in the auction mode for software and related services - Takes care of the most interesting topics regarding the legal landscape involving the procurement of computer goods and services by the Public Administration through the Auction mode and six more items related to the theme.

2011/09 - Legal Opinion on Licensing and adequacy of conditions imposed by bidding notices for the supply of computer programs - It deals with the validity and scope of certain conditions and requirements contained in bidding notices to obtain rights related to computer programs by public entities.

2011/09 - Legal Opinion on outsourcing in information technology activities - Answers and substantiates the reasons why outsourcing in IT activities is absolutely legal, stating categorically that "Statement 331 TST, in item III, allows the outsourcing of specialized activities, and nothing requires as much specialization as modern Information Technology" . know more

2011/07 - Consortium, SPE, SCP - These three legal figures can be powerful tools for a company's strategic planning. However, to use them accurately, it is necessary to know how to distinguish them and to know the elementary aspects of each of these institutes. In this ABES Advisor, we propose to present each one of them, by means of their constitutional features and tax aspects.

2011/05 - Taxes due on software commercialization - This Advisor aims to delimit the taxation commercialization of computer programs. It lists the taxes and comments on the tax impact on the economic exploitation of programs of external origin. However, the commercialization of software "not imported" will be subject to the payment of the same taxes (except those applicable to shipments abroad and customs clearance). It is understood as “non-imported” software, both that developed in the country and the one reproduced here, even if by simple duplication of its master copy - “master copy”.

2010

2010/07 - Retention of INSS on assignment of labor - Due to the numerous consultations that are being carried out by the Associates to this legal consultancy, it is necessary to reissue, with minor changes, the legal analysis previously carried out on this topic. Law No. 9,711, of 11/20/98, reworded Article 31 of Law 8,212, of 7/24/91, determining the retention of 11% of the gross amount of the invoice on services provided through “assignment of labor ”(Covering the“ labor contract ”).

2010/07 - Customs value of physical support containing computer programs (software) in game mode (including video game consoles) - At the beginning of this year, the Secretariat of the Federal Revenue of Brazil, through the Taxation Division of the Federal Revenue Service of Brazil of Inspection in São Paulo, under the Regional Superintendence of the 8th Region, published in the Official Gazette (DOU) ), of 01/29/2010, the menu of Consultation Solution nº 472 - SRRF08 / DISIT. The administrative consultation in question dealt with the customs valuation of software for video games (games), bringing with it a fiscal interpretation that directly reflected in the import of these goods, causing a significant increase in the calculation base of the incident taxes.

2010/12 - Electronic Invoice - On December 1, 2010, the mandatory issuance of an “Electronic Invoice” was issued to companies that sell computer goods. Since there are ABES members that still issue State Invoices (or combined, for ICMS and ISS), the entity's Legal Directorate considers it opportune to disclose that, in our opinion, since the edition of Complementary Law 116/03, it is only mandatory the issuance of the SERVICES FISCAL NOTE in operations with software programs.

2010/12 - Super Simple - Several associates have been consulting the ABES Legal Department on the possibility of qualifying companies in the Information Technology sector in Super Simples, as well as on which annexes of Complementary Law No. 123/2006 should be guided to define the tax rates that should pay. So, there is a summary on the topic that can be useful in this task, taking IT companies as the main focus.

2009

2009/09 - Retention of INSS on assignment of labor - Law No. 9,711, of 11/20/98, gave new wording to Article 31 of Law 8,212, of 7/24/91, determining the retention of 11% of the gross amount of the invoice on services provided through “Assignment of labor” (covering the “Labor contract”). In the form of paragraphs 3 and 4, of article 31, of Law 8,212, the legislator defined what is meant by “assignment of labor” and also listed the 04 (four) types of services that configure the assignment of labor constructions.

2009/07 - State Law 13,226 - Telemarketing - Law 13,226 is intended to protect people based or resident in the State of São Paulo, who are duly registered in the “Register for the Blocking of the Receiving of Telemarketing Calls”. The decree also extends protection to legal entities established in the State of São Paulo, registered in the mentioned register.

2009/06 - Electronic Invoice for Services - NF-e and the Electronic Tax Bookkeeping System - Through Municipal Decree No. 6,516, of 12/22/2008, the Municipality of Barueri instituted the “Electronic Invoice for Services - NF-e” and the “Electronic System Tax Bookkeeping ”.

2009/05 - Global Contracts - Multinational companies sign, with software companies, contracts that grant them authorization to use a computer program in their branches, subsidiaries and similar establishments, domiciled in several countries.

2009/01 - Municipal Law No. 14,668 - It resulted from Bill no. 626/07, authored by Councilman José Police Neto (PSDB), in view of the fact that technical support services in computer science, installation, configuration and maintenance of programs, classified under code 02917, started to pay ISS of 3% (three percent ), with the additional option of the company being able to allocate 1% (that is, 1/3 of the tax due), applied in the Municipal Digital Inclusion Fund, in the form of article 12 of the referred law.

2008

2008/11 - Backup (back-up) - Law No. 9,609 / 98 - Art. 6 Item IV.

2008/06 - Hiring of information technology services by the Federal Direct, Autarchic and Foundational Public Administration - On May 19, Normative Instruction No. 4 was issued by the Secretariat for Logistics and Technology of the Ministry of Planning, Budget and Management, which provides for the process of hiring Information Technology Services by the direct, autonomous and foundational Federal Public Administration.

2008/05 - Tax Replacement - Computer Programs - Through Decree No. 52,804, of 13/03/2008, changes were made to the Tax Regulation on Operations Relating to the Circulation of Goods and on the Provision of Interstate and Intermunicipal Transport and Communication Services - RICMS of the State of São Paulo.

2008/04 - Global Contracts - Multinational companies sign contracts with software companies that grant them authorization to use a computer program in their branches, subsidiaries and similar establishments, domiciled in several countries.

2008/03 - Retention of INSS on “assignment of labor” - Law No. 9,711, of 11/20/98, reworded Article 31 of Law 8,212, of 7/24/91, determining the retention of 11% of the gross amount of the invoice on services provided through “Assignment of labor”.

2008/01 - IOF in Software Operations - End of Zero Rate - On January 3, 2007, Decree No. 6,339 was published in the Official Gazette, changing the rates of the IOF - Tax on Credit, Exchange and Insurance Operations, when the item in the IOF Regulation (Decree No. 6,306) was inserted VII, to article 15, providing: "in other exchange operations: thirty-eight hundredths percent". Thus, ABES's understanding is that the banks' procedure is correct, since Decree No. 1,270 of the Federal Government of 11 October 1994, which had reduced the IOF tax rate on program operations to zero, was revoked. of computer.

2007

2007/09 - Municipal Complementary Law of Barueri No. 185, of July 25, 2007 - On August 31, 2007, for the service providers located in the City of Barueri, the constitutionally acquired right, derived from the Municipal Complementary Law of Barueri number 56, of 14/08/1997, which guaranteed them the payment of ISS calculated at the reduced rate, which was 0.5% (half percent) for computer services, classified in codes 1.01 to 1.08, of the List Attached to Complementary Law 116/03.

2007-08 - Rio de Janeiro - ISS - CEPOM - Registration of service providers from other municipalities - Through Municipal Law nº 14.042 / 05, Decree number 46.598 / 2005 and Ordinance SF number 101/205, the City of São Paulo instituted the REGISTRY OF SERVICE PROVIDERS OF OTHER MUNICIPALITIES. Apparently, “fashion is catching on”, since the Municipality of Rio de Janeiro, through Law No. 4,452, of December 27, 2006, instituted a similar procedure, including with regard to the list of documents that must be forwarded to the Secretariat of Finance, in order to complete the registration process.

2007/04 - Law No. 11,452, of February 27, 2007 - Declares no CIDE incidence on operations with computer programs (software) - It brought important legal tranquility for software companies by recognizing by ordinary law that DOES NOT FOCUS the “contribution of economic domain intervention aimed at financing the Program to Encourage University-Company Interaction to Support Innovation”, known as CIDE Tecnologia, on “the remuneration for the license to use or rights to commercialize or distribute computer programs”.

2007/03 - ICMS calculation base - Operations with software - Decree No. 51.619 From 02/27/07 - Restores effects of the former Art. 50, of the RICMS - With this legislative change, the São Paulo ICMS Regulation again requires ICMS on software transactions, determining that the tax be calculated on a calculation basis that corresponds to twice the market value of its IT support.

2007/02 - Repeal of art. 50, RICMS - The repeal of art. 50 of the RICMS implies official exemption, by the Government of the State of São Paulo, of software companies established in the State, of the collection of ICMS on operations with computer programs, including with regard to “twice the market value computer support ”, which is extended to electronic video games (videogames).

2005

2005 / 11- ISS - SOURCE - Tax Substitution - Scope of complementary law no. 128, of December 1, 2003, from Goiânia, and similar laws.

2005/10 - Retention of INSS on assignment of labor and contract - We analyzed article 31 of Law 8,212, of 7/24/91, determining the retention of 11% of the gross amount of the invoice for services performed through “assignment of labor” or “contract of labor”.

2005/04 - Taxation of computer program operations - Brasília - The response to Consultation No. 42/2005 - GEESC / DITRI - Process was published in the Official Gazette of the Federal District, No. 80, of 4/29/2005, Section I, Pages 30/31, by the Federal District Taxation Directorate. : 048.003.380 / 1998, with Lellis Processamento de Dados Ltda.

2005/02 - Increase in Income Tax and Social Contribution on Profit for service providers (including computer services). When the lights went out in 2004, the Federal Executive published yet another Provisional Measure, number 232, dated 12/20/2004, in which it inserted art. 11.

2005/01 - PIS / COFINS on revenues from computer services and economic exploitation of computer programs - Law Nº 11.051, of 12/29/2004, in its article 25, brought an important device that reduces the gap that existed between the discourse and the practice of the federal executive who, on the one hand, had elected “software” with one of the four sectors in which the current government has decided to boost growth.

2004

2004/11 - Withholding Income Tax on remittances abroad - Deals with remittances abroad in payments related to computer programs.

2004/10 - Law No. 10,964, which allows for registration at SIMPLES - For companies that perform certain service provision activities, listed in article 4.

2004/09 - New IRRF code for software license payments - The indicated code is “9427 - IRRF - REMUNERATION OF RIGHTS - RESIDENTS ABROAD”.

2004/02 - ICMS on Software in Rio de Janeiro - Decree nº 27,307 - The ICMS legislation on software in Rio de Janeiro is consolidated in Decree No. 27,307, of 10/20/2000, published in DOERJ No. 202, Part I, Page 1 to 2, of 10/23/2000.

2004/02 - Law No. 10,833, 12/29/2003 that alters COFINS legislation and imposes withholding tax on CSL, COFINS and PIS - The Federal Official Gazette of 12/30/2003 published Law nº 10.833, of 12/29/2003, resulting from the conversion of MP nº 135/2003, establishing briefly.

2004/01 - Municipal Law No. 13,701, of 12/24/2003 that alters the ISS legislation - Edition nº 147, of 08/01/03, of the Official Gazette of the Union, published Complementary Law 116, of 07/31/03, which, together with the non-revoked text of Decree-Law nº 406/68 , will now regulate the tax on services of any nature (ISS).

2003

2003/08 - Complementary Law No. 116 of 07/31/2003 - Changes the ISS Tax on Services - Edition nº 147, of 08/01/03, of the Official Gazette of the Union, published Complementary Law 116, of 07/31/2003, which, together with the non-revoked text of Decree-Law nº 406/68 , will now regulate the tax on services of any nature (ISS).

2003/05 - No. 13,476 of 12/30/2002 - ISS of São Paulo in activities with software - "The Tax rate is set at 2% (two percent) for the provision of services related to the activities of development, production and distribution of computer programs (software)".

2003/02 - CIDE - No impact on software operations - Through Law No. 10,168, of 12/29/2000, an Intervention Contribution in the Economic Domain - CIDE was created, due by the legal entity that holds a license to use or acquire technological knowledge, as well as that signatory of contracts that imply transfer of technology, signed with residents or domiciled abroad.

2002

2002/08 - ICMS on software - Credit on input tax - The ABES Legal Coordination is convinced that the ICMS requirement is unfounded.

2002/07 ICMS on software - Although convinced of the non-incidence of ICMS on software operations, ABES advised on that occasion - and in this newsletter it reiterates the same orientation - to the Entity Associates that, in the Federation Units that have been demanding ICMS on software operations based only on the magnetic media (CD-ROM, Epron, Floppy, etc.) is collected with the ICMS.

2002/02 - ICMS on software - We base our understanding based on item III, of article 1 of Decree Law number 406/68 and on article 8 of the aforementioned legal diploma.

2002/01 - CIDE - Expansion of the calculation base - Through Law No. 10,168, of 12/29/2000, an Intervention Contribution in the Economic Domain - CIDE was instituted, due by the legal entity holding a license of use or acquirer of technological knowledge, as well as that signatory of contracts that imply technology transfer, signed with residents or domiciled abroad.

2001

2001/12 - State of São Paulo raises ICMS on games - Governor Geraldo Alckmin published Decree No. 46.294, of 11/23/2001, adding to Article 50 of the ICMS Regulation, a single paragraph that substantially alters the tax levy on games (including games for computers).

2001/11 - Reduction of ISS in São Paulo - In the previous legislature, through Law 13.092, of 12/07/00, the Municipality of São Paulo approved REFIS - Fiscal Recovery Program of the Municipality of São Paulo (articles 1 to 14), the reduction of the ISS for activities with Software, Cleaning and Conservation, Security, and Labor Leasing (article 15) and the past ISS amnesty for companies that transfer their establishments to the city of São Paulo in 90 days (article 16).

2001/01 - Income Tax Rate on software payment was and will continue to be 15% (Fifteen percent) - Remittances abroad in payments related to computer programs, whether for commercialization or distribution purposes, or for the use of the importer himself, continue to be taxed at the rate of 15% (fifteen percent).

2000

2000/06 - Rio de Janeiro reduces to 1% ICMS in software - Through Decree nº 26.497, of 06/14/00, published on page 5 of the Official Gazette of Rio de Janeiro on 06/15/00, with effect from 07/01/00, the Government of Rio de Janeiro reduced to 1% the incidence of ICMS on “internal operations” with “non-customized” software.

1999

1999/06 - Millennium Bug - Ordinance No. 212, of 05/14/99, from the Minister of Justice and Ordinance No. 601, of 05/14/99, from the Secretary of State for Administration and Patrimony occupied the main attention of those present.

1999/04 - ISS retention in Brasilia with draft document - The Federal District has been demanding from several companies, agencies and entities of the Federal Administration and of the Federal District Administration that, as “tax substitutes”, withhold the ISS on payments made to third parties for services rendered.

1999/03 - Retention of INSS on assignment of labor - changes in income tax - New ORDER OF SERVICE, No. 203, of January 29, 1999, revoked OS-195 and brought new regulations to the matter.

1997

1997/06 - Analysis of decision SRRF / DISIT Nº 66 (10th Fiscal Region - Rio Grande do Sul) - IRRF - The Official Gazette, of 10/24/97, page 24086, published Decision No. 66, of September 18, 1997, of the 10th Fiscal Region (Rio Grande do Sul).

1997/05 - ISS for Software Companies established outside the capital of São Paulo. Basic Legislation on Place of Service - Extracts from the book “Doctrine and Practice of Tax on Service”, by Bernardo Ribeiro de Moraes. Specific rules of incidence. Jurisprudence on the matter. ISS is not levied on software operations.

1997/04 - Advisor on DECEX Communiqué No. 13 of 05/21/97 - Bill of Deputy Cunha Bueno - Translation of software and manual. Single Copy - Ordinance 181/99 of the Ministry of Finance - Official letter from SEPIN. ICMS on software operations.

1997/03 - Corporate Income Tax Law 9,430 / 96 - ISS for Software Companies established outside the capital of São Paulo.

1997/01 - Siscomex - DECEX Communication No. 19 of 12/13/96 - Since January 1, 1997, the new import rules came into force, with the adoption of the Integrated Foreign Trade System - SISCOMEX, including the above-mentioned Communiqué, which deals specifically with operations subject to “Non-automatic licensing”.