The Federal Revenue Service has published a new consultation solution on software taxation, which does not yet follow the understanding of the Federal Supreme Court (STF). The agency classifies off-the-shelf products sold in retail as merchandise, and those made to order as a service provision \u2013 which impacts Income Tax (IRPJ) and CSLL on the gross revenue of companies taxed on presumed profit.<\/p>\n\n\n\n
The new guidance comes from the 4th Tax Region (AL, PB, PE and RN). It follows what was previously stated by the 6th Tax Region (Minas Gerais). The understanding, published on the 19th, benefits taxpayers, according to lawyers.<\/p>\n\n\n\n
According to the way the IRS taxes, in the case of off-the-shelf software, the IRPJ and CSLL percentages on gross revenue are 8% and 12%, respectively. In the case of a custom product, the rate is 32%.<\/p>\n\n\n\n
In February, the Supreme Court concluded a trial in which it changed its understanding of off-the-shelf and custom software. The ministers decided that ISS and not ICMS apply. Until then, the interpretation was that ICMS should apply to off-the-shelf software. ISS applies to custom software.<\/p>\n\n\n\n
The new consultation solution, number 4,028, is from the Taxation Division (Disit). The query was presented by a company that operates in the licensing of car dealership management software, without customization. At the time it made the query, it was opting for the Simples Nacional, but expected to be disqualified this year, when it would adopt the presumed profit.<\/p>\n\n\n\n
The software was offered to a segment of customers only after it had been developed, with no commitment to adapt it to a specific buyer. Since the IRS believes that the tax rate depends on the nature of the activity prevailing in the relationship between the parties, it understood, in this case, that it would be a sale, and not an order, and would be subject to lower taxation \u2013 8% of IRPJ and 12% of CSLL.<\/p>\n\n\n\n
According to Rafaela Cal\u00e7ada da Cruz, a partner at Pereira do Vale Advogados, the scenario has changed, but the Federal Revenue Service still does not apply the Supreme Court's understanding. \u201cThe consultation solution ignores the understanding, despite the ministers talking about state and municipal taxes. The situation is the same,\u201d she states. This stance, she adds, leads to divergence between the federal, state and municipal spheres regarding the same fact.<\/p>\n\n\n\n
For lawyer Fernanda S\u00e1 Freire, partner at Machado Meyer Advogados, there are doubts as to whether the Supreme Court's position should impact the agency's position. \u201cThe IRS has already stated that the STF's decision was to resolve a conflict between the state and the municipality and does not affect the federal government, because the legal framework would be different,\u201d she says.<\/p>\n\n\n\n
The lawyer says that the discussion about software taxation is not over yet. \u201cThere are many other issues. The discussion about the percentage of taxation on presumed profits is one of them,\u201d says Fernanda.<\/p>\n\n\n\n