LEGALITY AND CONSTITUTIONALITY OF THE SERVICE TAX ON STREAMING OPERATIONS

Abstract

The present work seeks to analyze the indirect taxation on streaming operations, specially the lawfulness and constitutionality of federal and state rules which predict the incidence of ISS or ICMS on such operations. Therefore, after a brief conceptualization of this kind of technology, the study is directed to verify specific provisions of the LC nº 116/2003 (Brasil, 2003) that have dealt with operations identified as streaming in the tax service field, and its compatibility with the Federal Constitution (Brasil, 1988). The research made use of specialized literature review and the analysis of STF jurisprudence concerning the meaning of “services of any nature” as its working method. It was found that, besides being mentioned in LC nº 116/2003 (Brasil, 2003), streaming services engages mixed or complex obligations, where are combined, in an inseparable way, obligations to give and to do in the same legal transaction, fact that allows the ISS taxation in accordance to STF precedentes. The judgements of ADI nº 5.659 (Brasil, 2021) and ADI nº 5.958 (Brasil, 2018) followed the same line, firming solid premises right to the constitutionality and lawfulness of ISS incidence on streaming platform, on the other hand moving away from the idea of ICMS taxation on such media operations.