In the recent judgment of the Direct Action of Unconstitutionality (ADI) No. 6,034, the Federal Supreme Court ruled out the levy of ICMS-Comunicação on the activities of inserting advertising and publicity in any media, including digital ones.
In the action, the Governor of the State of Rio de Janeiro sought the unconstitutionality of the inclusion of item 17.25 in the list of services annexed to the Complementary Law of the ISS (nº 116/03), the impossibility of collecting the municipal tax and, as a consequence, the incidence of ICMS-Comunicação.
However, in a judgment held last week, the Justices of the STF unanimously rejected the intention of the Governor of Rio de Janeiro, recognizing the incidence of ISS and not ICMS-Comunicação based on the following main grounds:
• The mere fact that the legislator provides in a Complementary Law that activities are taxed by the ISS already removes the intention of levying ICMS-Comunicação; and
• The activities under discussion do not fit into the concept of communication services, being preparatory services to those of communication, therefore not subject to ICMS-Comunicação.
In addition to ensuring greater legal certainty and warding off undue claims on the part of States, the decision represents a relevant victory for taxpayers, especially digital platforms.
If you have any questions or want to better understand the impacts on your company, Almeida Advogados has a team specialized in Tax Law, updated daily and available to resolve any issues related to the topic presented.
Authors: partner Rodrigo Petry Terra and lawyer Fabio Catta Preta Casella