A fenomelogia da incidência tributária do ISS e do ICMS nas operações relativas a software no Brasil

Abstract

The present work will seek to discriminate the incidence of the Tax on Services of any kind (ISSQN) and the Tax on the Circulation of Goods and Services (ICMS) in cases involving operations with software in Brazil. An analysis of the particularities of the legal situation of software in Brazil will be made, highlighting the main internal differences of this object, the perceptible immunities in the operations that involve them and the hypotheses in which they are called ISS and ICMS for software taxation. , the social litigation that constantly changes through technological-scientific revolutions and other vectors, passing, then, by the reflexes of this "cultural" movement in the application of the tax norm in the operations with software in Brazil. The hypothesis of tax incidence of the two current taxes - ISS and ICMS, as well as the construction, interpretation and contours of the concepts that drive their incidence, namely: merchandise and service, will be discussed. In another, it will be presented the specific approximation of each tax with its respective taxable tangent of the software, passing to the rub of this work, which is the analysis of the conflict of tax jurisdiction between ISS and ICMS in operations that involve software in Brazil, punctuating the approximation terminology of this work of conclusion to the excerpt "conflict of competence", moving away from the other terminologies constructed by the doctrine (conflict of tax incidence, conflict of laws) and analyzing the causes and consequences of this impasse, elencando the elaboration of a way to discriminate the object to be taxed and consequently approximate the correct and immediate incidence tax. The present work will focus on reading and bibliographical exposition, analysis of the law and the construction of doctrine and jurisprudence, going into the discussion of the moment of the making of the norm by the legislator and the development and character of the current social group that contains