A natureza jurídica do BITCOIN à luz da legislação brasileira e a (in)viabilidade de incidência de ICMS sobre suas operações de compra e venda

Abstract

The present work proposes to identify a legal nature of Bitcoin in light of the legislation currently in force in Brazil, in order, based on this definition, to verify the (in)feasibility of levying a Tax on Circulation of Goods and Services - ICMS on its operations of buy and sell. The choice to delimit purchase and sale transactions is justified by the fact that they are the most common operations in the Bitcoin network, in which there is greater movement of resources. Regarding the analysis of the legal nature, it was found that, due to the characteristics and purposes of Bitcoin, it fits both legal and technical definitions of a software, whose main function is to provide a digital payment method, being possible to frame it legally in this type of intangible asset (software). After that, therefore, a possibility of classifying Bitcoin as a currency, as a financial asset or as a security, because, where there are similarities with these assets, the legal and normative provisions prevent these classifications. Based on this premise that Bitcoin is a computer program, the legal issues present in the law, doctrine and jurisprudence on the incidence of ICMS on software were addressed, in particular the conflict between state jurisdiction (ICMS) and municipal (ISS) for taxing this type of intangible asset. Finally, the impossibility of the ICMS levy on Bitcoin purchase and sale transactions was verified, since this legal transaction materializes through the assignment of rights, with the ISS being levied on them and, as a consequence, ruling out possibility of ICMS levy.