Tributação pelo Brasil da prestação global de serviços digitais automatizados: a interação dos usuários geolocalizados no território brasileiro como novo elemento de conexão tributável

Abstract

The challenges posed by the Digital Economy to International Tax Law and to the internal legal systems of all States have motivated research conducted across the globe. Through this thesis, we sought to prove that the interaction of users in the provision of Automated Digital Services (ADS) constitutes a new connection element to give rise to the competence of the States in which they are provided for the exercise of their tax jurisdiction. To this end, the discussions that have been held on the subject at the international level were presented, giving greater focus to studies conducted by the Organization for Economic Cooperation and Development (OECD) and which are aimed at the States represented by it, which, for the most part, are mostly capital exporters. By detailing the dynamics involved in the provision of the SDA, it was possible to prove that their effective provision depends on facts that occur in the territory in which the users whose interaction is aimed are geolocated, which occurs when directed to users geolocated in Brazilian territory. It also considered the peculiarities observed in the Brazilian legal system, especially from the insertion, in the Constitution of the Federative Republic of Brazil of 1988 (CRFB/1988), of the protection of personal data, including by digital means, as one of the guarantees and fundamental rights to be guaranteed to all Brazilian citizens. With a view to contributing to the in-depth debate on the subject, the main tax types currently existing in the Brazilian legal system and which could eventually be used for the taxation of such services, when directed to users geolocated in Brazilian territory, were also analyzed. Then, considerations were made regarding the importance of Brazil exercising its tax jurisdiction over such operations as a way of guaranteeing the effective protection of the personal data of its citizens, as it is an autonomous human right or a result of the already established human rights to privacy and freedom, which is also imposed on the Brazilian State by virtue of the human rights treaties it adheres to. It concludes, therefore, that Brazil is competent to tax such services when directed to users geolocated in its territory, not only with potentially tax collection purposes, but also with a view to allowing the Brazilian State to fulfill its duty to protect data of its citizens.