When assessing Theme 590 of general repercussion, the Supreme Federal Court established the thesis that the incidence of ISS on the licensing or transfer of the right to use computer programs developed for clients in a personalized manner is constitutional, under the terms of subitem 1.05 of the list attached to LC nº 116/03.
The effectiveness attributed by the decision was ex nunc, starting from March 3, 2021, the date on which the minutes of the judgment of direct actions 1,945/MT and 5,659/MG were published.
Therefore, from the aforementioned date it is possible to: (i) claim for the recovery of undue ICMS levied on software transactions in favor of those who collected this tax until March 2, 2021, preventing, in this case, municipalities from charging ISS in relation to the same taxable events; (ii) prevent states from charging ICMS in relation to taxable events that occurred until March 2, 2021.
It was also determined that the following are exempt: (i) legal actions in progress on March 2, 2021, including those for the recovery of undue payments and tax executions in which the incidence of ICMS is discussed; and (ii) cases of proven double taxation related to taxable events that occurred up to March 2, 2021, in which cases the taxpayer will be entitled to recovery of the undue ICMS, respecting the prescriptive term, regardless of the filing of legal action up to that date.
Finally, in cases where ICMS or ISS were not collected, ISS is levied in relation to the taxable events that occurred up to March 2, 2021.
