A constitucionalidade do imposto sobre serviços (ISS) instituído sobre os "serviços" de streaming

Abstract

The purpose of this monograph, entitled "The Constitutionality of the Tax on Services (ISS) Established on the Streaming Services", was to investigate the constitutionality of item 1.09 inserted in the list attached to Complementary Law 116/03 by Complementary Law 157 / 16. The incipient exploration of the topic by the academic community, due to its actuality, justifies the accomplishment of the research. The research was essentially bibliographic and the method of reasoning used to reach the conclusion was the deductive. Initially, we tried to contextualize the theme, pointing out the growth of streaming activity in Brazil, as well as the motivations of the bill that culminated in the edition of Complementary Law 157/16. Next, it was prioritized the study of the mode of operation of the streaming, as well as the qualification of the legal relationship established between the parties as a license agreement, which would receive the same rule regarding the lease. Subsequently, the ISS was studied, highlighting the elements of the matrix rule and the concept of services for doctrine and jurisprudence, which previously corresponded to the obligation to do, but currently has undergone jurisprudential changes in order to ensure its greater breadth. In addition, considering the current doubts about the incidence of ICMS - communication on streaming activity, this possibility was also analyzed, which was soon discarded, as there was no provision of media for the exchange of streaming providers. messages between senders and recipients. Finally, it was concluded by the constitutionality of the ISS incidence on streaming, since it defends a mutation of the concept of services to adapt to the complexity of the services provided in the present time, as well as a change of the criterion of selection of activities that can if subsumed to the aforementioned tax exoneration, by exclusion of the other tax rates. Moreover, it was defended, based on the understanding that emerges in the STF, the unfeasibility of the interpretation of the constitutional concept of services to be subsumed to the infraconstitutional legislator.