St. Paul suspends collection of ICMS for software downloaded – Digital Convergence

Ana Paula Lobo … 01/13/2016 … Convergence Digital

The controversial decision of Confaz – National Council for Financial Policy – taken at the end of last year and that allowed United to charge VAT on the software application or via download gained another chapter. In this Tuesday, 1/12, the government of São Paulo published in the Official Gazette, the suspension of the collection until it has a definition of the establishment liable to pay the tax. The surcharges ICMS caused panic in service providers, who found themselves facing a tax impasse.

“The truth is that the Supreme Court decision on the collection of tax on software was outdated. It was decided that the VAT would be charged in the so called shelf software, which would be sold to the mass, since this software could be considered as tangible and the ISS for software made by demand, if defined as intangible. But come to cloud computing . and software as a service and requires a new definition The Supreme Court will have to look into the subject to give the final position, “he told Digital Convergence portal, the lawyer Sergio Villanova Vasconcelos, a tax of Peixoto & amp; Cury Advogados.

According to Vasconcelos, the postponement of the collection alleviates the situation of software companies. “No doubt there was a great demand from companies. They were very confused. I just do not know how long this suspension measure will be worth. Remember that the states want to increase revenue because of lower revenues caused by the economic moment,” he added the attorney.

The decision of the Government of São Paulo, is still evaluating Vasconcelos must have been taken because there was a clear risk of lawsuits mass. This is because the decision of Confaz left unclear what the establishment would be responsible for this type of operation. “Without a definition of this concept there is no way to be collecting the GST,” said Sergio Vasconcelos.

“The truth is that cloud computing has generated a problem and requires a quick review of taxation concepts. Until do not leave the definition, we have lawsuits, “considers the expert. “The general rules for the taxation of ICMS on the software need to be addressed in Complementary Law 87/96. The Supreme Court will have to define what is the nature of the operation and how it will be taxed,” adds Vasconcelos.

The lawyer Ana Paula Siqueira Lazzareschi Mosque, the SLM Lawyers, is categorical in saying that the decision of Confaz is unconstitutional because it is a double taxation. “The collection will be made by electronic note generated for the purchase of software. On that note has for the ISS and will enter the ICMS. You can not. Moreover, it can not increase collection of tax by decree,” explains the expert. According to her, in addition to litigation, the greatest impact of this double taxation goes to the consumer’s pocket. “It is true that this collection the most will be fully passed on to the user of the software. It is he who will pay this final bill,” he adds.