Sao Paulo postpones charge ICMS on software download – Telesintese.

The government of Sao Paulo not charge temporarily ICMS on software, program, application, electronic files and electronic games, standardized, acquired via download or streaming. The suspension of the collection was due to the need to define the place of occurrence of the triggering event to then perform the proper collection of VAT. – Pursuant to Decree No. 61791 of January 11, 2016

The decree also established that the tax burden of the tax, made available by any means, shall be 5%, except for video games, even educational, whatever the nature of your hardware and the equipment on which they are employed. This is the minimum tax burden established by the Agreement No. 181 of the National Council for Financial Policy (Confaz). The Decree entered into force on the date of its publication and shall apply from 1 January 2016.

According to Thiago Corrêa Vasques, tax law attorney’s office Gasparini , De grew and Nogueira de Lima Advogados, “n will was setting on the competent entity to charge. If you downloaded the source server is in Bahia, and I do the download in Sao Paulo, what state will the tax? “.

According to him, anticipating a flurry of lawsuits, the São Paulo state decided to wait this setting before making the charge. “It is unclear who will define the level of government that can charge. Probably this decision will Confaz [National Council for Financial Policy], “he says.

The expectation of attorney is that the impasse skirt a similar definition to adopt for e-commerce, where since 1 January there is a rate of collection of ICMS both the origin and the destination of the product. The obligation is part of the approval of PEC 197/2012, which led to Constitutional Amendment 87/2015. In 2016, the charge is 40% in the target and 60% at source, in 2017, 80% in the target and 20% in origin, and in 2019, the entire contribution will be the target.

“ The trend is something that is the rule of the road for e-commerce, since it speaks of an operation, which starts in one place and ends in another, “concludes Vasques, on the possible resolution of the impasse.