10/30/2020
The Decree 65.255 / 2020, which was published on October 17, brings several changes to the ICMS Regulation. Among the changes, there is a change in the reduction of the tax calculation base on transactions with software, programs, applications and electronic files, standardized, even if they are or can be adapted, made available by any means.
Until then, the reduction in the calculation base was carried out so that the tax burden would result in a percentage of 5%, which, with the new Decree, will be 7.9%.
Although the state legislation continues to provide forecasts on the incidence of ICMS in software operations, including through this Decree that increases its tax burden, attention is drawn to the fact that several nuances on this topic are still being discussed in the Supreme Court Federal (STF).
Decree 65.255 / 2020 was published on October 17, which brings several changes to the ICMS Regulation. Among the changes, there is a change in the reduction of the tax calculation base on transactions with software, programs, applications and electronic files, standardized, even if they are or can be adapted, made available by any means.
Until then, the reduction in the calculation base was carried out so that the tax burden would result in a percentage of 5%, which, with the new Decree, will be 7.9%.
Although the state legislation continues to provide forecasts on the incidence of ICMS in software operations, including through this Decree that increases its tax burden, attention is drawn to the fact that several nuances on this topic are still being discussed in the Supreme Court Federal (STF).
In this sense, the Indirect Action of Unconstitutionality nº 5,958 / DF, which aims at declaring the unconstitutionality of ICMS Agreement nº 106/2017, provides for the collection of ICMS “in transactions with digital goods and goods sold through electronic transfer”. The enforceability of such a hypothesis, however, is suspended in the State of São Paulo until a final decision by the STF.
In light of this, it is observed that the subject of the incidence of ICMS on software operations is still the focus of debates in the Superior Courts. However, this has not prevented the São Paulo state legislation from regulating the collection of this tax by its taxpayers.
It is important to mention that the change brought about by State Decree nº 65.255 / 2020 may indicate that the State of São Paulo will start to intensify the inspection on software operations.
Coauthors: Marcos Paulo de Oliveira Menegari and Thais Ribeiro Bernardes Casado
