Definição da incidência de ISS ou ICMS sobre o licenciamento de software: mercadoria virtual ou serviço?

Abstract

The taxation of software has been widely discussed in the past few years, even with some unanimous understandings, it is not yet a pacified topic and there is still doctrinal divergence. The central debate on this issue starts from the point that taxpayers lack legal certainty, since both states and municipalities believe they are competent to levy tax on these computer programs, which leaves room for double taxation. The difficulty of fitting the software into the concept of merchandise for ICMS purposes or service for ISS purposes ends up making it difficult to collect taxes and generating conflicting understandings. One way that the higher courts found to settle this conflict was by taxing ISS on-demand software and ICMS on off-the-shelf software. The study proposed to analyze the doctrine that deals with the topic and to verify how the courts have been positioning themselves on the topic. Thus, he concluded that this dichotomy is not satisfactory for the real needs of our current social context and that regardless of the type of software, it should be taxed with ISS.