Last Friday (1st), the ICMS Agreement 112/2024 in which six states are authorized to waive the collection of ICMS (Tax on the Circulation of Goods and Services) on electrical energy destined for solar DG units.
The rule authorizes the states of Acre, Espírito Santo, Minas Gerais, Rio de Janeiro, Rondônia and São Paulo to waive the collection of tax on electricity destined to consumer units participating in the SCEE (Electric Energy Compensation System), in the amount corresponding to the electricity effectively compensated under the terms of Normative Resolution 1.000/2021, coming from a photovoltaic source.
The standard also includes, in its second clause, the provision that the internal legislation of the federated units may define other rules and conditions for the implementation of this agreement.
But what has changed in relation to the existing tax rules applicable to the distributed generation sector?
Ao Canal Solar, the lawyer specialized in the electrical sector and teacher of Canal Einar Tribuci Manor, founding partner of Tribuci Advogados, clarified the main doubts.
According to him, the new agreement does not revoke ICMS Agreement No. 16/2015. “In theory, it does not change anything because ICMS Agreement 112/2024 did not revoke ICMS Agreement No. 16/2015, or other state regulations related to the matter. However, the publication brings new possibilities for interpretation, in addition to allowing other states to adhere to the respective agreement, which is more up to date with the existing business models in the sector”, explained Tribuci.
“This is because, by referencing Resolution 1.000/2021, it allows the exemption from ICMS collection to be applied to any type of shared generation (consortium, cooperative and association), power plants of up to 5MW, without the need for the injected energy to come from the same holder who compensates for the electrical energy within the scope of the SCEE”, he adds.
Tribuci also points out that the ICMS Agreement 112/2024 standard uses the expression “electric energy” broadly, without specifying which parts of the tariff should be exempt from ICMS.
“Because the rule does not impose a literal restriction on which tariff components should be applied to the exemption from collection, by using only the expression “electric energy”, it allows for a broader interpretation than previous rules. Therefore, ICMS does not apply to other amounts charged by distributors, such as, for example, for the use of the distribution system”, comments Tribuci.
Finally, the lawyer comments that the “sector must be attentive to how state legislation will receive the content of ICMS Agreement 112/2024 which, unfortunately, does not provide objective text that avoids errors of interpretation and the necessary legal security for entrepreneurs and consumers”.
Don't miss any news from the electricity sector! Sign up to our Community by clicking here and get exclusive access to our content!
all the content of Canal Solar is protected by copyright law, and partial or total reproduction of this site in any medium is expressly prohibited. If you are interested in collaborating or reusing part of our material, please contact us by email: redacao@canalsolar.com.br.
