This Wednesday (04/11), the Federal Supreme Court resumed the judgment of ADIs 5659 and 1945, which discusses the incidence of the Tax on Operations related to the Circulation of Goods and Provision of Interstate and Intermunicipal Transport and Communication Services (ICMS) on support and computer programs (software). The preliminary result of the votes so far provides legal certainty for the ICT sector, as it six ministers have already voted for the impact of the ISS on the licensing or assignment of the right to use computer programs.
This was a day of celebration for companies and entities, because in addition to the positive result in the STF, of a discussion that had been going on for several years, the National Congress extended the exemption from payroll until December 2021. However, at the end of the session, Minister Luiz Fux, president of the Supreme Federal Court, asked for views and suspended the trial, which should be resumed next week, but with no possibility of altering the result.
“We have already achieved gains in the Income Tax, in the IoF, in Cide, even in the reduction of the ISS in São Paulo, but no achievement can be compared with this decision on the ICMS. It is the biggest achievement of the IT sector in more than 30 years, as we overcome the risk of double taxation that would impact the digital transformation of Brazil, in the generation of jobs and in the competitiveness of Brazil ”, highlighted Dr. Manoel dos Santos, legal director of ABES.
By ISS
The session on Thursday (4) began with the vote of Minister Dias Toffoli, rapporteur for ADI 5659. For him, the licensing or assignment of the right to use software, standardized or by order, falls under sub-item 1.05 of the list of services attached to Federal Complementary Law 116/2003 as taxable by the ISS, regardless of whether the transfer of use occurs via download or through access to the cloud. The rapporteur stressed that, under the Supreme Court's guidance, the simple fact that the service is defined in a complementary law as taxable by the ISS would, in theory, attract the incidence of this tax only on the total value of the operation and remove that from ICMS.
Toffoli also stressed that the development of software is a service that results from human effort. In this sense, in your understanding, in the case of providing personalized software through direct electronic commerce, the ISS should apply, as the obligation to do (supplying personalized software and making the computer program) and the accessory obligation to give (the transfer of the digital asset). Also in the licensing or in the assignment of the right of use, for the rapporteur, there is unequivocally a service - the development of a personalized computer program. The obligation to do is present in the intellectual effort and also in the other services provided to the user, such as the help desk, the availability of manuals, technological updates and other features provided for in the license agreement. Ministers Alexandre de Moraes, Luís Roberto Barroso, Rosa Weber and Ricardo Lewandowski voted in the same direction. In conclusion, Minister Marco Aurélio, due to the removal of the ICMS levy on the licensing and assignment of the right to use software.
Merchandise
Minister Cármen Lúcia, rapporteur for ADI 1945, and Minister Edson Fachin, who had already voted in the action proposed by the PMDB, maintained their understanding when voting in the CNS action. In his view, computer programs are not considered a commodity only when the service is contracted to develop them. When intellectual creation is produced in series and there is commercial activity, the ICMS, and not the ISS, must be levied.
Minister Gilmar Mendes partly disagreed, when admitting the incidence of the ISS on software developed in a personalized way and the ICMS on standardized software, sold on an industrial and mass scale.
Source: ABES and STF
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