New tax may endear software products such as games and … – iMasters

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With the definitive end of the Good Law, announced earlier this week, we will have to pay more taxes on electronic products such as laptops, tablets, routers and smartphones. But calm that there’s more, as soon also operations on fees will be charged involving software, including applications and electronic games made available via download.

At the end of 2015, the National Council for Financial Policy (Confaz ) approved the signing of 19 secretaries of Finance, the ICMS Agreement No. 181 authorizing the collection of the tax on this type of product. The agreement establishes that the tax burden arising from that collection shall be at least 5% of the transaction value and encompasses the states of Amazonas, Bahia, Paraná, Pernambuco, Rio de Janeiro, Rio Grande do Sul, Santa Catarina and Sao Paulo.

The standard also allows states to stop requiring all or part of ICMS tax debts, already launched by tax assessments or not, including interest and penalties, related to transactions that occurred prior to the effective date of the agreement . “Thus, it is understood that according to Confaz, States could charge download from the ICMS in the past,” said the lawyer Maurice Barros, Gaia, Silva, Gaede & amp; Associados Advogados, told the newspaper Valor Econômico.

Previously, long before the internet and online services gain millions of fans in the country, it was common for state governments to charge almost no amount of software industry ICMS – just to attract more users and companies to invest in this type of industry. São Paulo, for example, established that the tax would be calculated twice just on the value of physical media, while the Rio Grande do Sul went further and exempted altogether the tax software.

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However, the need for storage and expansion of web platforms have led to changes that made the states rethink the values ​​of these charges. In São Paulo, the state government issued Decree 61,522 / 2015, which allows the ICMS is calculated based on the total price of the service or transaction, which includes the program-based systems and other amounts charged to those who buy the product . In practice, this means that any software product, whether in the cloud or digital stores – Google Play Store, App Store, Xbox Live Marketplace, Steam, PlayStation Store, among others – can become more expensive because of the collection more taxes.

For the lawyer, it is possible that the measure is challenged in court because the Confaz the agreement can not provide new triggering events for taxation to cover “counterparts” and “electronic data transfer “there is no law that permits recovery. Moreover, Barros states that already exists Complementary Law No. 116/2013, which specifies the collection of ISS for the software. Therefore, the requirement of VAT would be a second charge.

In an article in Conjur portal, Henry Lummertz, lawyer and partner of Souto Correa office also believes that this new tax’ll end up in court. He says there are solid legal arguments to question the intention of the states to levy sales tax on operations related to the software download.

According to the lawyer Louis Alexandre Barbosa, the LBMF Lawyers, “a major automation company São Paulo industrial “will propose an injunction to get rid of ICMS provided via download software. According to the expert, “most companies acquire software through license purchase, which is not a commodity”, and that the license actually worth for a time, “is configured it is not circulating.”

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With information Channel Tech