EN 
PT_BR 
In collaboration with Marcelo Tanos*
Through State Decree No. 48,296/2021, published on November 12, 2021, the Minas Gerais state granted ICMS exemption (Tax on Operations relating to the Circulation of Goods and on the Provision of Interstate, Intermunicipal and Communication Services) ICMS levied on the import of equipment or components intended for the use of solar and wind energy:
“Art. 1 – Item 98 of Part 1 of Annex I of the ICMS Regulation – RICMS, approved by Decree No. 43,080, of December 13, 2002, comes into force with the following wording:
98 – Departure, in internal or interstate operation, or entry resulting from imports from abroad, of equipment or components listed in Part 11 of this Annex, intended for the use of solar or wind energy.
Art. 2° This decree comes into force on the date of its publication.”
In summary, the new text establishes that the exit (in internal or interstate operation) or entry (resulting from imports from abroad) of equipment or components intended for the use of solar and wind energy will not be taxed by ICMS.
It is worth highlighting that the exemption promoted through State Decree No. 48,296/2021 is the result of great pressure exerted by the Minas Gerais distributed generation market, given that the legislation did not clearly define which equipment/components were or were not exempt from ICMS. , which implied significant legal uncertainty for entrepreneurs.
Added to this is the fact that, in order to acquire such foreign equipment/components, it was necessary to obtain a declaration from entities in the sector in order to demonstrate that, internally, there were no supplies of the required quality and quantity.
In the same sense, State Decree No. 48,296/2021 is also the result of the state of Minas Gerais's manifest interest in:
- (i) propagate distributed generation on Minas Gerais soil;
- (ii) reinforce the state's national leadership in photovoltaic energy generation; It is
- (iii) attract more investments for this type of electricity generation, highlighting that, today, the state of Minas Gerais has an installed capacity of 1.3 GW, which represents 18% of national photovoltaic energy production.
It is worth remembering that a large part of Minas Gerais' success stems from Law No. 22,549/2017, also enacted by the state of Minas Gerais, which was the subject of registration and deposit – Certificate SE/CONFAZ No. 50/2018 – before the Executive Secretariat of CONFAZ (Council National Treasury Policy).
Through the aforementioned law, the state of Minas Gerais granted exemption from ICMS to the consumption of electrical energy from micro or mini-generating units distributed from photovoltaic sources within the four modalities currently provided for in ANEEL Normative Resolution No. 482/2012, namely:
- (i) generation close to the load;
- (ii) remote self-consumption;
- (iii) enterprise with multiple consumer units; It is
- (iv) shared generation, with installed power less than or equal to 5 MW.
Having made due considerations, it is worth clarifying that, as with State Law No. 22,549/2017, for it to be valid, State Decree No. 48,296/2021 must be registered and deposited with the Executive Secretariat of CONFAZ, in terms of art. 3 of Complementary Law 160/2017, culminating in the issuance of a new agreement that must be approved and ratified by a favorable vote of at least two thirds of the federated units and one third of the federated units that form part of each of the five regions of the country.
On this occasion, the validity period of the respective tax benefit will be established depending on the destination of the incentive, which, if it is understood as aimed at promoting the industry, will be valid until December 31, 2032.
*Lawyer and Founding Partner of LTSC Sociedade de Advogados, with specialization in Regulatory Law and Energy Law from the Center for International Law – CEDIN and the Institute of Advanced Studies in Law – IAED. Postgraduate in Tax Law from the Center for Studies in the Federal Legal Area – CEAJUF. Graduated in law from the University Center of Belo Horizonte. Founding member of the Brazilian Association of Energy and Environmental Law – ABDEM and member of the Natural Gas Committee. Vice-President of the OAB/MG Distributed Generation Law Commission.
