Plataformas de streaming: incidência de ICMS ou ISS

Abstract

The following essay has the immediate objective of demonstrating the apparent unconstitutionality featured in subitem 1.09 of the Complementary Law n. 157/2016, which established the charge of Services Tax (ISS) over assignment of usage rights (streaming platforms). Thus, through analysis of the meaning of services featured in the Federal Constitution and in the Civil Code, it is possible to verificate that the tax established by the Complementary Law does not meet Brazilian legislation at all. The essay derives from a bibliographic research of description of doutrinary understanding and case law on the proposed subject. For this purpose, many information sources were used, stressing books, scientifical articles and case law broadcasting websites. On this thesis, it is analysed how the Services and Merchandises Circulation Tax (ICMS) and Services Tax (ISS) were historically introduced in the Brazilian legal system regarding tax matter, emphasizing also who is competent to institute them, as well as the analysis of other intrinsec elements to tax incidence, such as triggering event, calculation basis, affectation and mainly tax aliquots. Thereafter, the meaning of service is brought up, such as the concepts of service in a legal and economic sense, and added value service, those being fundamental concepts for comprehending the presented subject. In addition, the modus operandi of streaming technology is explained. Also, Netflix and Youtube are mentioned as two of the main streaming platforms utilized in Brazil. Finally, it is shown that subitem 1.09 of the Complementary Law n. 157/2016 features an apparent unconstitutionality, since streaming platforms are not service providers at all, as there is no human action, but assignment of usage rights instead, thus making Services and Merchandises Circulation Tax (ICMS) the applicable tax regarding streaming platforms.