The demand for contracted and unused electrical energy should not be included in the ICMS calculation basis. This was the decision of the STF (Supreme Federal Court) when judging an appeal from the state of Santa Catarina (SC).
By majority vote, the Plenary dismissed RE (Extraordinary Appeal) 593824, which discussed the inclusion of amounts paid as contracted demand for electricity in the ICMS calculation basis.
In the judgment, the following thesis was established, according to the vote of the rapporteur, minister Edson Fachin: “The demand for electrical power is not subject, in itself, to taxation via ICMS, as only the values relating to to those operations in which there is actual consumption of electrical energy by the consumer”. Ministers Alexandre de Moraes and Marco Aurélio were defeated.
According to tax lawyer Anderson Ramos, the impact of the STF's determination is positive for large companies. “The power demand is charged to large consumers who need sufficient energy to run the machines. The STF’s decision reduces the amount payable on the electricity bill”, explains Ramos.
