On October 5, the law “Confaz Convention 106/17” was published, which deals with the collection procedures of the ICMS that impact on operations with digital goods and merchandise traded through electronic data transfer.

By the end of 2015, the Confaz Agreement 181 was issued, through which states authorized the reduction of the calculation base of these operations so that the tax burden was 5% of the value of operations with software, programs, electronic games , applications, electronic files and the like.

In São Paulo and other states, this collection was suspended until the place where the events that created those cases was defined.

Agreement 106/17 comes precisely to regulate this and other issues, and determines that the ICMS will be due in the state where the acquirer of the digital asset is domiciled.

Only operations intended to the final consumer will be taxed and the taxpayer of the state tax will be the legal entity that owns a website or an electronic platform that sells or makes these goods available, even though, by periodic payments, for digital goods and electronic data transfer, an electronic invoice (NF-e), model 55 should be issued.

The legal entity in such cases must register in the federated units in which the internal exits or imports intended to final consumers are practiced and the states can adopt simplified procedures for that state registration, which may even be dispensed.

The Agreement becomes effective six months after the date of publication but it will be necessary for each state to change the local legislation so that the new provisions are applied.

The issues to be faced today concern the taxation of software download operations, operations with so-called software’s as services or the availability of software for remote access, among many other issues that arise with the new business models.

In this new step, the states pretend the ICMS to be demanded even in the cases in which the software and other digital goods are transferred by electronic means.