Tributação do software: da incidência (ou não) do ISS e do ICMS

Abstract

This work aims to analyse, from a constitutional and legal perspective, the taxation of the software by the Tax on Services of any Nature and by the Tax of Circulation on Goods and Services, making an analysis about the concept of software, based on Law nº 9.609/98 and related legislation, as well as analyzing the existing conflict of jurisdiction, based on the matrix rule of tax incidence of each of said taxes. The software consists of a computer program, which is the intellectual elaboration of a program that allows the operation and use of an equipment, consisting of a system of routines and functions that disseminates ideas through a physical support, being an immaterial and intangible good. In order to classify the software "on demand" and "on the shelf" for tax purposes, it is the task of analyzing the type of obligation that constitutes in each case and whether it fits in the material and spatial aspect of the Tax on Services of any Nature incidence hypothesis and Tax of Circulation on Goods and Services. The analysis of the decisions of Brazilian Courts is of an extreme importance to situate such a controversial topic in present time. In order to be tax the software, there can be no violation of what is provided in the Federal Constitution, otherwise it is unconstitutional to collect the tax, which is why this study is important