As explained in the article Changes in ICMS collection and impacts on consumers, which we discuss the effects of LC 194/2022 (Complementary Law No. 194 of 2022) and the decision of Extraordinary Appeal 714.139/SC, under General Repercussion (Theme nº 745), which established the understanding that the ICMS rates on electricity operations and telecommunications services could not be higher than those on operations in general in reason for the precept of selectivity.
Despite the Supreme Court having modulated the effects of its decision so that it takes effect from the 2024 financial year, except for actions filed before February 5, 2021, the publication of LC 194/2022 brought these changes forward to 2022.
As a result, still in 2022, we had a reduction in ICMS on fuels, natural gas, electricity and communications and transport services, as they were considered indispensable and essential, with the setting of the ICMS rate at a higher level than that for operations in general being prohibited. .
A few days after the sanction of the federal law, 17 states and the Federal District had already reduced the tax¹, as its political bias was quite clear, especially the reduction in fuel prices.
However, at the end of 2022, after the election, the states of Piauí (Complementary Law nº 269, of 08/12/2022), Bahia (Decree nº 21.796, of 23/12/2022) and Mato Grosso do Sul (Decree No. 16.073, 28/12/2022), reestablished the increased ICMS rate on telecommunications and electricity services, simply ignoring Complementary Law No. 194/2022.
The last two also returned to demand the State Fund for Combating and Eradicating Poverty (FECOP) for telecommunications and electricity services.
In this sense, the rates in force for 2023 are:
- Bahia: 26% ICMS and 2% FECOP;
- Mato Grosso do Sul: 27% ICMS and 2% FECOP; It is
- Piauí: 27% ICMS.
Bahia and Mato Grosso do Sul did not even respect the nineagesimal precedence, demanding the increased rate from 01.01.2023.
The respective states are based on the fact that the modulation of the effects brought by the STF in the judgment of RE 714.139, which established the reduction of the rate from the 2024 financial year, ignoring the existence of a Federal Law supervening on this judgment – a new and which requires a current interpretation of this legal situation.
Given this scenario, many wonder about the legality of this increase in ICMS on electrical power operations and telecommunications services.
Should the modulation of the effects of the STF decision only prevail from January 2024, or did LC 194/2022 put an end to the possibility of increasing the ICMS in June 2022?
The problem lies in the confusion created by the STF with its recent decisions regarding Direct Actions of Unconstitutionality (ADIs)² referring to specific legislation in some states, which were filed by the Attorney General of the Republic before the implementation of LC 194/2022.
The STF understood that the state rules that brought ICMS rates higher than the regular rates for telecommunications and electricity services were unconstitutional, but that due to legal certainty and uniform treatment of Supreme Court decisions, the effects should only occur in 2024.
It turns out that, as Minister André Mendonça pointed out in his vote, with this decision the STF simply ignores the existence of a Complementary Law supervening on that decision given by the STF in RE 714.139/SC, which modulated the effects only for 2024 in relation to the limitation of tax rates of ICMS on telecommunications and electrical energy services at a higher level than on operations in general.
With this decision, there is a rush among states to increase ICMS rates for 2023, with some even disregarding the nineagesimal grace period.
In parallel, as pointed out by the National Committee of Finance Secretaries of the states and the DF, studies carried out suggest that the states increase the modal rate (the rate that is applied to operations in general), so that the loss of revenue caused by LC 194 /2022 does not affect public services. According to the calculation, the average percentage at national level would go from 17,5% to 21,5%³.
As expected, legislative interventions with a purely political appeal are not sustainable in the long term, but in this case it was faster than expected.
Brazil's tax scenario should bring strong emotions in the coming years, strongly impacting the economy, which is why investors in the energy sector are advised to exercise caution in all tax assumptions that influence their business plans.
In collaboration with Rafael Kenji Tomigawa
¹ In addition to the DF, reductions were found in Acre, Alagoas, Amazonas, Ceará, Espírito Santo, Goiás, Mato Grosso do Sul, Minas Gerais, Pará, Paraíba, Paraná, Rio de Janeiro, Rio Grande do Norte, Rio Grande do Sul, Rondônia , São Paulo and Santa Catarina.
²The following ADIs were judged by the STF after the edition of LC 194/2022: 7108 (Pernambuco), 7109 (Mato Grosso do Sul), 7127 (Piauí), 7131 (Acre), rel. Min. Gilmar Mendes; 7110 (Paraná), 7126 (Amapá), 7129 (Amazonas) rel. Min. Rosa Weber; 7111 (Pará), 7113 (Tocantins), 7116 (Minas Gerais), 7119 (Rondônia), 7122 (Goiás) rel. Min. Edson Fachin; ADI 7112 (São Paulo), 7121 (Rio Grande do Norte), 7125 (Espírito Santo), 7128 (Bahia) rel. Min. André Mendonça; 7117 (Santa Catarina), 7123 (Federal District) rel. Min. Dias Toffoli; 7118 (Roraima), 7120 (Sergipe) rel. Min. Cármen Lúcia and; 7130 (Alagoas) rel. Min. Luiz Fux.
The opinions and information expressed are the sole responsibility of the author and do not necessarily represent the official position of the author. Canal Solar.
An answer
I liked the article. I received the energy bill here in Piauí and was surprised by the charge of 27% of ICMS and PIS Confins. Now I have doubts, it is unconstitutional to charge more than 18%, but Equatorial is charging it. But are we obliged to pay these 27%?