O conflito normativo que rege a tributação nos “serviços” de streaming, ante as inovações trazidas pela Lei Complementar nº. 157 de 2016

Abstract

This work aims to analyze the legitimating aspects of the innovations brought by Complementary Law number 157 of 2016, by predicting audits, videos, among other products available in electronic media, as subject to taxation by the Tax on Services of Any Nature (ISS), therefore, covering streaming contracts, these marketed by large companies such as Netflix and Spotify, reaching the assets of several consumers. Descriptive research followed as a methodological guide, collecting the data in an indirect way, analysing the relevant legislation and confronting it with doctrine, jurisprudence, as well as comparative law. With the need to maintain the social and economic order of the municipalities, as well as to strengthen the relationship between them, the legal system added this law in order to clarify the material aspects that give rise to the incidence of the aforementioned retro tax, however, it ended up ignite further discussions on this topic. As demonstrated, the constitutional command that grants jurisdiction to the municipalities to institute the aforementioned tax, that is, article 156, item III of the Major Law, limited its incidence to services rendered, which is conceptualized by civilist matters, to which it cannot the legislator disfigures the legal nature of an institute to include it as liable to be taxed. Furthermore, corroborating with the thesis of unconstitutionality of Complementary Law 157 of 2016, an understanding signed by the Supreme Federal Court is collected, which generated the edition of the binding summary number 31, and which prohibited the incidence of ISS in the rental of movable assets , because this in its bulge would bring an obligation to give, not to do. In this sense, he analysed that streaming platforms use contracts with the same elements as those for the rental of movable assets, and that, consequently, as it is an obligation to give, it would not be understood with a service, therefore, not subject to taxation. by the ISS. The research showed that the legal innovation brought by Complementary Law 157 of 2016 brought hypotheses of unconstitutional tax incidence, as it misconfigured the meanings given to the term “service” that was already regulated by the Civil Code, acting out of step with the legal system.