ICMS - um imposto peculiar

Abstract

The aim of this dissertation is analysing the ICMS implications on tender public procedure that has taken place since the middle of 1997. In view of that, the participation of private capital has provoked a new tax order, mainly concerning Value Added Tax - VAT (in Portuguese ICMS). The Value Added Tax is due on merchandise sales, as well as on intramunicipal and interstate transport services. Such tax is also due on comunication services. Bear in mind that telecommunication services is species of communication genus. Moreover, some tax constitutionalist principles will be analised, as well as specific leading cases tha vave been duscussed by doctrine, administrative an judicial precedents and fiscal authorities. The analysis of such leading cases involves a common issue: if the Value Added Tax is due or not by: (i) Internet access providers, (ii) Voice over Internet Protocol providers, (iii) commercials on cable TV or free TV, (iv) communication provider has to pay VAT also over the amount of lease equipment, (v) importation of equipment under a special custom regime of temporary admission, (vi) importation of merchandise by tradings located in State of Espírito Santo under a special program of tax benefit named FUNDAP, (vii) record in fiscal books of VAT paid on acquisition of pieces and parts destined to maintanance of equipment recorded as fixed assets, (viii) the correct VAT treatment on the sale of a establishment (goodwill) and on split-off of a legal entity, and finally, (ix) the undue adoption of diferent legal strutures to enjoy tax benefits, for instance, the immunity applicable to the sales of books, newspapers and magazines