The move upset many, including some lawyers, who have started to prepare theses to try to overturn it, arguing that the state of São Paulo equals approximately 40% of the national market. The decree in question, which is the 2015 number 61,522, detailing the VAT will be calculated based on the price that includes software-based systems (CD or USB stick) and other amounts charged to those who buy the product – currently with the measure has not yet entered into force, we have already paid incidents twice imposed on the value of the physical support, imagine when it starts to be worth?
The SefazSP talks that the goal behind this is to adapt the Paulista taxation to that adopted in other states, but according to lawyers, that, besides being a defensive measure through the fiscal war, eventually raising the tax burden the sector, which already makes a high value added product, which will directly impact revenue. Currently the software ICMS rate is 18%, but the state only applied the percentage of the physical product, after all downloads are virtual, ie not generate tax collection, measures introduced in the 90s during the government of Luiz Antonio Fleury Filho, who aimed to attract it, more companies to the state.
A lawyer Machado Associados office, Júlio de Oliveira, remember that there is already a case to question the focus on custom software and reiterates that the Supreme Court has held that ICM can only be charged in relation to the so-called “shelf software,” those that are mass-produced. The lawyer Vinicius Jucá the TozziniFreire believes, however, that the measure does not apply because the download is not a license henceforth is not a property that can be transferred from one title, that is, it is not charging GST on their circulation . Several legal professionals are contesting the measure, others have find fair. What’s your opinion?
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