Reflexão quanto à possibilidade ou não de incidência de ICMS ou de ISS sobre software virtual

Abstract

Such study aims to elaborate a reflection regarding the incidence or not incidence of the ICMS or ISSQN on virtual software. Since the technological advances in the internet universe, computer programs, in large part, started to be “obtained” through electronic data transfer (download). Then there is an impasse in the world of the national tax system, that is, which tax (ICMS or ISSQN) is incurred in transactions involving software “acquired” by downloading via the internet? Parallel to this, a cloudy scenario for taxpayers begins to take shape. Furthermore, demands are initiated on this matter, many of which are still pending judgment on the merits. With this, the present work intends to demonstrate the impossibility of taxing such operation by ICMS and the possibility of taxation by ISSQN. In the first chapter, concepts about software, merchandise and service are addressed. Then, in the second chapter, the generating facts of the two relevant taxes and legislation are analyzed. And, finally, in the third chapter, the problem is discussed while examining the impossibility of ICMS levy on operations involving computer programs and the possibility of ISSQN levy on these operations. The present study was based on: doctrinal positions regarding concepts, analysis of judgments, articles, books, publications on the Internet, CF / 88 and related legislation.