A possibilidade de circulação de bens virtuais para fins de incidência de ICMS no ordenamento jurídico brasileiro

Abstract

It was adopted as a fact paradigma in order to exemplificate and sample the thesis effect virtual itens commercialized as accessories for exclusive use inside of videogames plataforms. Nevertheless, firstly it shall be discussed the legal nature of those virtual itens, mainly on framing those as softwares what entails consequently on the “Software Law” and Intelectual Property Law. Therefore, also is shown amongst the presente work the transaction type realized between the users who acquire those virtual itens and the software development companies discarding the possibilty of a ‘buy and sell’ contract and admiting the idea that the contract that best suits the situation is the user license. With the public law parameters defined, the generator aspect of the ‘ICMS’ was dissected between its nuclear elements which are the words ‘operation’, merchandise’ and ‘circulation’ with a bigger emphasis on the third. Beside it, the presente work still realizes a precedent evolution analysis of the tax treatment directioned to operations that involves softwares, mainly ‘ADIs 5659/MG and 1945/MT’ and ‘RE 176626-3’. Finally, it came on the conclusion that ‘ICMS’ isn’t the adequate tax duty to charge this kind of business.