The National Confederation of Services (CNS) obtained a favorable decision before the Federal Supreme Court Direct Action of Unconstitutionality - ADI 5659 - thus removing the incidence of ICMS on operations with computer programs.
CNS requested the declaration of unconstitutionality of Decree 46.877 / 2015 MG. He also asked declaration of partial unconstitutionality, without text reduction, of article 5 of Law 6.763 / 1975 and article 1, items I and II of Decree 43,080 / 2002, both from MG, as well as article 2 of Federal Complementary Law 87/1996.
This is because, the state regulations of Minas Gerais intended that companies whose object is the provision of data processing services and computer services, collect the ICMS on operations with computer programs.
In the opinion of CNS, which was recognized by the STF, transactions with software cannot be subject to ICMS, as they are subject to the ISSQN of competence municipality, under the terms of Complementary Law 116/2003, which provides that the elaboration of computer, as well as its licensing or assignment of right of use are services and, therefore, should suffer the incidence of municipal tax only (ISSQN).
“There was a great discussion that now tends to be pacified, many states charged ICMS interpretative. In some cases upon notice, ”explains Álvaro Daira of Gegers advocacia.
