Análise da tributação do streaming à luz da legislação tributária brasileira

Abstract

The rapid technological development has generated some nebulous zones in the Law, especially in the Tax Law in regard to the taxation of activities carried out via Internet. In this sense, the lack of consensus on the legal nature of new technologies such as streaming has further exacerbated the fiscal war between states and municipalities, generating an environment of legal insecurity in which, simultaneously coexists a Complementary Law, inserting such technology into the role of services taxable by the ISS and norms regulating the collection of the ICMS-Merchandise on them. In addition to the conflict of jurisdiction between municipal and state tax administrations, it is still debated whether the said streaming technologies would effectively fit into one or another incidence hypothesis, given that they resemble to some extent the leases of movable assets, over which there is no tax incidence. With this in view, the present work, using the inductive approach, through the bibliographical and documentary research, seeks to investigate if the tax treatment dispensed to the provision of audiovisual content via streaming obeys the constitutional assumptions.Therefore, after the study of the materiality of the ISS and the ICMS-Merchandise, the doctrinal and jurisprudential analysis about the concept of service and merchandise adopted for tax purposes and the main characteristics of the streaming, highlighting the way in which it is used by Netflix, the legal nature of these activities was compared with the incidence assumptions of said taxes. The results obtained led to the conclusion that the incidence of ICMS-Merchandise on these activities is unconstitutional and, as regards to the ISS, it was verified that although the adoption of the legal concept of service points to the unconstitutionality of its incidence, the concept of service in the light of the precedents of the STF, more coherent with the current context, for keeping correspondence with the activities carried out by the platforms of streaming, considers constitutional its incidence.