The Second Panel of the Superior Court of Justice (STJ) has maintained the decision of the state of Amazonas Court of Justice exempting the registration (“habilitação) of cellular phones from the assessment of ICMS (the value added tax). The decision is considered important not only for cellular phone companies – which challenge the payment of ICMS under similar conditions all over the country -- but also shall become a reference for other important legal discussions involving taxation of telecommunication and internet services. Teleamazon Celular initiated a lawsuit alleging that Convention ICMS nº 69/98, which extended assessment of the tax to cellular phone services including the registration expenses, conflicted with Section 60 of Law No. 9,472/97, the General Telecommunications Act. The company claimed that the new charge was also in conflict with Section 12 of Complementary Law No. 87/96, with Section 68 of the Brazilian Tax Code and with Resolution 73/98 of the Brazilian Telecommunications Agency (Anatel). The state of Amazonas pledged that the telecommunication service comprises all activities that allow the service to be offered.
Internet companies are also trying to get rid of the assessment of ICMS, arguing that they do not render telecommunication services, but rather a value added service.
Sources: Valor Econômico March 26, 2003 p.E2
Date of insertion: 27/03/2003 - 13:54:03