Tributação sobre o direito de uso do software: pacificação do iss como imposto devido e suas consequências práticas

Abstract

The object of this study is the contextualization and analysis of the tax repercussions of the judgment of ADI nº 1.945-MT and nº 5.659-MG, which finalized the discussion on the taxation of goods and services to be levied on software. Thus, after more than 20 years of debate before the Federal Supreme Court, the ISS as a tax due on the licensing of the use of computer programs, it is important to understand the motivations that led the Constitutional Court to choose among the options of the commodity dichotomy versus service. The latter, despite not representing unanimity before the doctrine, not even among the Justices of the STF, was chosen as the genre to frame computer programs. Thus, the effects of the decision modulated according to the proposal of Minister Dias Toffoli are indicated, which instituted the preservation of ICMS or ISS collected by taxpayers until May 20, 2021, date of publication of the judgment, passing, from then on, to collect only ISS by related operations. However, in case of double taxation and lawsuits in progress, the taxable person is entitled to repeat the undue payment referring to the ICMS paid. Finally, the peculiarities about the software licensing service provision chain are also noted, in which each actor must collect ISS and cumulatively, and the provider establishment, which can be any of the municipalities in Brazil, regardless of the range of locations in that the application is available to users