ISS or ICMS levied on Streaming and Controversy Related to the Exception Provided for in Item 1.09 of Complementary Law n. 116/2003

Abstract

This article aims to analyze the taxation levied on streaming. Initially, it briefly discusses the impact of technological innovations on the world market, seeking to present the concept of streaming as the flow sense that allows, without downloading, without transferring a digital file from a remote computer to the local computer, to watch videos, listen to music or read a book continuously. It seeks to address the evolution of legislation regarding the forecast incidence of the ICMS and ISS, which are respectively incumbent upon States and Municipalities. Based on the examination of the judgment of direct actions of unconstitutionality nº 5.659 and nº 5.958, it highlights that the Supreme Court indicated the incidence of ISS. Discusses the exception provided for in item 1.09 of the attached list of Complementary Law n. 116/2003, regarding the distribution of content by Conditional Access Service providers, raising a potential tax jurisdiction conflict between States and Municipalities. Finally, considering the legislative process of Complementary Law n. 157 and the scope of the institute of the incidence hypothesis, it points out the impossibility of levying two different taxes, depending on the activity provider, on the same materiality.