EN 
PT_BR 
A The decision by the STF (Supreme Federal Court) to include tariffs for the use of distribution and transmission systems (TUSD and TUST) in the ICMS calculation basis caused a huge surprise to consumers, considering that it contradicts contrary precedents of the STJ and the STF itself, creating true legal uncertainty.
According to the president of the National Energy Consumers Front, Luiz Eduardo Barata, the Complementary Law 194/22 had corrected the distortion pertinent to the collection of tax on services that do not characterize goods and consequently should not be part of the tax calculation basis.
Last Thursday (9/2), the STF minister, Luiz Fux, granted an injunction suspending the differentiated calculation of the ICMS charge on tariffs in the energy sector.
The injunction responds to a Direct Unconstitutionality Action filed by the governors in Pernambuco, Rio Grande do Sul, Maranhão, Paraíba, Piauí, Bahia, Mato Grosso do Sul, Sergipe, Rio Grande do Norte, Alagoas, Ceará and the Federal District, but applies to all states.
In the assessment of the National Consumer Front, the STF's analysis should have been carried out broadly and in such a way as to not only consider the reduction in state revenue, but also the situation of consumers, whose energy tariffs are among the highest in the world. world.
“The decrease in revenue does not justify, in itself, the maintenance of transmission and distribution services as well as the sectoral charges in the ICMS calculation base, says Barata, adding that it is not appropriate for court decisions to take into account only the arguments on the side that collects, without also considering the reasons of the tax payers.
In this sense, the executive recalls that the non-incidence of the tax, in fact, had the potential to increase revenue. “With lower electricity bills, there would be more money left for consumers to spend on other goods and services. At the very least, this could maintain state revenue,” he highlights.
The incidence of tax should produce a new increase in consumers' electricity bills, as explained Thiago Bao Ribeiro, lawyer specializing in distributed generation and CEO of the firm Bao Ribeiro Advogados.
“We will have a very significant increase in the electricity bill, especially because TUSD is a relevant component of the distribution tariff and was without ICMS. The expectation is an increase of approximately 10% depending on the state”, he explained.
Understand the case
As Bao Ribeiro explains, the injunction granted by minister Luiz Fux is the result of a decision taken last year, when the National Congress discussed the fact that electrical energy is considered an essential product and, therefore, not subject to a high ICMS charge.
At the time, it was agreed with the STF to reduce the tax rate for states by a level of up to 18%. After this decision was made, an agreement was made and the proposal for Complementary Law 194 emerged, establishing this ICMS limit.
“The issue is that, at that time, the Congress National included an additional item (in Complementary Law 194) that also provided for the exclusion of ICMS on TUSD and TUST. This resulted in an unprecedented loss of revenue for the states and a movement began to interpret that the STF decision would not have allowed this withdrawal (exclusion of ICMS on TUSD and TUST)”, pointed out the lawyer.
As a result, a group of states filed a Direct Unconstitutionality Action and managed to show Minister Fux that they would be suffering irreparable damage without being able to charge ICMS on TUSD and TUST.
According to the STF, every six months the states stopped collecting approximately R$ 16 billion, which also had an impact on the collection of municipalities, since the Federal Constitution determines that 25% of the revenue collected from ICMS by the states must be passed on to municipalities.
“The next step now will be to put this Direct Unconstitutionality Action to a vote in the Plenary. But until then, we still have a long way to go, with the right to defense and oral arguments from associations, until this action is taken to a vote by the 11 ministers. Until the definitive vote on this item in the STF, this injunction has effect for all states”, concluded Boa Ribeiro.
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