Taxation of software – By a majority of votes, the Federal Supreme Court (STF) determined, on the 24th, that the decision that excluded the levy of the Tax on Operations relating to the Circulation of Goods and on the Provision of Interstate and Intermunicipal Transportation and Communication Services (ICMS) on the licensing or assignment of the right to use computer programs (software) will have effects, in general, as of the publication of the minutes of the judgment of the Direct Actions of Unconstitutionality (ADIs) 5659 and 1945.
According to the understanding adopted, the tax levied on these operations is the Tax on Services of Any Nature (ISS).
Legal certainty
The judgment of the ADIs, respectively reported by Justice Dias Toffoli and Justice Cármen Lúcia, was concluded last Thursday (18). At the session on the 24th, the majority of the justices followed the modulation proposal presented by Justice Dias Toffoli. In light of the debates and suggestions raised during the judgment, Toffoli set out eight factual situations, with a proposal of solutions and an indication of their respective practical effects.
Isonomic treatment
The modulation proposed by the reporting justice covers various situations involving taxpayers, states, and municipalities: payment of both taxes, of only one of them, or of neither; lawsuits in progress in the lower instances; actions for the recovery of undue payment (reimbursement), etc. The objective is to establish isonomic treatment among those in good standing, those in default, and those who have actions pending in the Courts.
Taxpayers who paid only the ICMS, for example, are not entitled to a refund of the amounts, and the municipality cannot charge the ISS, under penalty of double taxation. Taxpayers who paid only the ISS, in turn, need to confirm the validity of the payment, and the state cannot charge the ICMS.
The reporting justice also recalled the situation of taxpayers who have not paid either of the taxes up to the day before the publication of the minutes of the judgment. In that case, only the ISS may be charged by the municipalities. Conversely, taxpayers who have paid both taxes may file an action for recovery of the undue ICMS payment, under penalty of unjust enrichment of the state.
With respect to the lawsuits pending judgment brought by taxpayers against the states or the municipalities, the decision must follow the STF’s guidance, that is, the levy of the ISS only.
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Source: STF
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