EN 
PT_BR 
The exemption from ICMS (Tax on Circulation of Goods and Services) on micro and mini generation of solar energy has already been approved in almost all Brazilian states.
Despite this, the subject continues to generate discussion today. The week before last, an energy generation consortium made up of small and medium-sized companies from Pernambuco was exempted from paying tax by the courts.
The issue was taken to the Court after the State understood that the passage of energy through the distribution system justified the charge.
The government of Pernambuco also claimed that generation, through a consortium, would not be covered by the Confaz Agreement No. 16, 2015, which guarantees exemption only for projects operated by a single consumer and with an installed capacity of a maximum of 1 MW.
In defense, however, lawyer André Edelstein, partner at Edelstein Advogados, which advises the Consórcio Valorgas Energia Sustentável, claimed that the non-incidence of the tax does not depend on whether the micro and mini energy generation project falls within the rules of Agreement 16, since there is no legal circulation of merchandise.
The argument was accepted by judge Haroldo Carneiro Leão, from the 6th Public Finance Court of Recife. The judge understood that the incidence of tax should not exist when the consumer himself is the one who generates his own electrical energy. This was not the first time that an entity received a favorable opinion from the Court under similar conditions.
Last year, the 21st Civil Chamber of the Court of Justice of Rio Grande do Sul (TJ-RS) removed the ICMS charge from a mini energy generator. The judges understood that the operation was not subject to tax as there was no legal circulation of the goods.
Technical analysis
According to Bárbara Rubim, lawyer and specialist in electricity sector regulation, the tax rates ICMS in electricity currently range from 12% to 32% of the electricity bill, depending on the State and consumption range.
“When we had resolution 482 published and the arrival of the electrical energy compensation system, a debate began as to whether the consumer who produces his own energy should pay ICMS on the gross value he consumes or if he should pay the tax only on the net value of your consumption”, she explains.
The lawyer comments that, after much discussion, in 2015, Confaz agreement 16/2015 was published, a body that deals with issues relating to ICMS and which is made up of Finance Secretaries from all Brazilian states.
“This agreement authorized all interested states to grant exemption from ICMS on energy compensated by consumers who generate their own energy as long as the credits for compensation came from systems that had up to 1 MW of installed capacity and were connected to the grid, via generation next to the load or remote self-consumption”, he highlighted.
Over the years, according to her, each of the Brazilian states gradually joined the agreement, to the point that today there is, throughout the country, an exemption from ICMS on energy that is compensated by the consumer who generates their own energy. Despite this, Bárbara explains that some states understand that this rule does not apply to the case of the full tariff.
Read more: ICMS exemption in Minas Gerais expires in 2022
“When we look at the energy tariff, we realize that it is made up of two large components: the TE, which brings together all the components related to the generation of electrical energy, and the TUSD, which brings together the costs and components related to the use distribution and transmission of our system”.
Opinion: Is the ICMS exemption for GD granted by the state of RJ valid?
The lawyer explains that, because of this, some states understand that this ICMS exemption should not be applied to the TUSD tariff table. “In these states, the feeling that the consumer has is as if this exemption was partial, more or less around 50%”, commented Bárbara, who also said that today the states where this exemption is 'partial' are: Santa Catarina, Paraná , Rio Grande do Sul, São Paulo, Rio de Janeiro, Espírito Santo, Sergipe and Ceará.
9 Responses
Mini-generation of energy through photovoltaic capture, cooperatives and taxation.
Bruno Rezende Palmieri, retired National Treasury Attorney, Lawyer OAB/MG 66877.
What is mini energy generation?
Minigeração de Energia Solar is a photovoltaic solar energy generating plant, with an installed power greater than 75 kW and less than or equal to 5 MW.
Minigeneration and microgeneration: what is the difference?
In solar energy microgeneration, the photovoltaic system has a power of up to 75kW and in solar energy minigeneration, the photovoltaic system has a power between 76 and 5MW.
Source:https://www.portalsolar.com.br/microgeracao-de-energia-solar.html
There we go again. However, we are going to make some considerations about the Cooperative Law, not the credit law, which already has a specific legal diploma. We must examine relevant aspects of this organizational model, focusing on its most relevant legal aspects.
LAW No. 5,764, OF DECEMBER 16, 1971.
Defines the National Cooperative Policy, establishes the legal regime for cooperative societies, and provides other measures.
Art. 79. Cooperative acts are those carried out between cooperatives and their members, between these and those and by cooperatives among themselves when associated, to achieve social objectives.
Single paragraph. The cooperative act does not imply a market operation, nor a contract for the purchase and sale of a product or merchandise.
As the mind awakens from its “dogmatic sleep” as occurred with Kant, after reading the preclar David Hume, we can glimpse that the power limit of 5 (five) Mega Watts, defining photovoltaic minigeneration, has been established not on scientific criteria. In some research institute, using the already well-known technology of supercomputers, superconductors and the surprising improvement in the processes for obtaining graphene, the size of photovoltaic capture plants will be increasingly reduced and their maximum power output will be increasingly increased. generation. Meanwhile, at Aneel's “legislative” stops, Resolution No. 482/2012 was issued, responsible for setting the maximum power limit in terms of photovoltaic minigeneration. Let us view this type of regulatory approach with reservations, as the Fundamental Law of the Republic requires much more than a Regulatory Agency and its leaders, lobbyists, in short, the entire entourage to occupy the premises of said body. I made references to this pantomime in another article, I don't know when it will be published with the title A timid exemption established in State Law 23,762/2021, of the State of Minas Gerais. But in any case, I examined the normative quadrant well and I consider, despite the contrary positions, absolutely necessary to issue a Federal Complementary Law both to deal with the matter – energy – and more importantly, in the case of an authentic scientific-technological revolution, certainly You can search throughout the Magna Carta and the CTN and you will not find (unless under the influence of heavy dogmatic somnambulism) the triggering fact conditio sine qua non for the genesis of the tax obligation, perhaps for the activity of launching this metaphysical, ethereal and nefelibata. Thing in itself, Kant's noumenon. Let the light of the king star shine without trying to retain it with tributary sifting routes. Pure legal-scientific fiction, teleportation of Kant's noumenon to the factual world, or to the clothesline of a modest house in some state of the federation, where the mother and father, small family farmers, hang out their clothes to dry.
Machado de Assis, immediately, would see Lobo Neves in this situation and would call it Resolution No. 482/12, Lobo Neves. Lobo Neves Resolution. Precisely in its article 2, II, with the highlight of the excerpt transcribed below. Here the Lobos Neves pack clumsily and unscientifically delimited the maximum power of mini-energy generation through photovoltaic collection.
NORMATIVE RESOLUTION No. 482, OF APRIL 17, 2012 Establishes the general conditions for the access of microgeneration and distributed minigeneration to the electrical energy distribution systems, the electrical energy compensation system, and provides other measures.
II – distributed minigeneration: electrical energy generating plant, with installed power greater than 75 kW and less than or equal to 3 MW for hydro sources or less than or equal to 5 MW for qualified cogeneration, according to ANEEL regulations, or for other renewable sources of electrical energy, connected to the distribution network through installations of consumer units; Wording given by Normative Resolution 687/2015/ANEEL/MME)
Does the character live up to the Resolution or is it the Resolution that highlights the character? Well, Marcela has already appeared in this Machado-legal scenario, you can bet, she has emerged and there she is (nothing against the character of the character)…Virgília, as you know, is already in the context, having engaged in marriage with the defenseless Lobo Neves. Who is Virgilia? It could be the Brazilian people, apathetic towards politics and their “representatives” gathered in the pack of Lobos Neves… Excuses requested from the clear Machado for the somewhat narrow-minded use of his characters. It's a narrow-minded use to the extent that the context is also narrow-minded... I reaffirm, let the sunlight shine without eclipses of dogmatic, sleepy pseudo-standardizations and cloudy, unscientific (much less legal) thoughts!
“The best way to predict the future is to create it.” (P. Drucker)
Imagine Peter Drucker in full fun, laughing without any reservations at this histrionic and clumsy plot.
To resolve or dissolve the plot, let us use the Cooperative Law, with the purpose of bringing together mini photovoltaic energy generators and axiomatically putting down the Lobo Neves Resolution, the Mining Law 23,762/2021 and the new Federal Law 14300/22. Let us analyze some other provisions of Law No. 5,764, which are quite important for our far from modest exegesis. For this purpose, we collate the arts. 88 and 88-A, of the aforementioned statute.
Art. 88. Cooperatives may participate in non-cooperative societies to better meet their own objectives and others of an accessory or complementary nature.
Art. 88-A. The cooperative may be endowed with extraordinary autonomous concurrent legitimacy to act as a procedural substitute in defense of the collective rights of its members when the cause of action concerns acts of direct interest to the members that are related to the cooperative's market operations, as long as this is provided for in its statutes and there is, expressly, authorization expressed individually by the member or through a general meeting that decides on the proposition of the judicial measure. (Included by Law No. 13,806, of 2019)
In this quadrant – with our focuses and reliefs – it is always healthy to remember that Lex Maxima provides in its arts. 5th, XVIII, XIX; 146, III, c; 174, § 2, verbs.
XVIII – the creation of associations and, in accordance with the law, cooperatives do not require authorization, and state interference in their operation is prohibited;
XIX – associations can only be compulsorily dissolved or have their activities suspended by court decision, requiring, in the first case, a final judgment;
Art. 146. The complementary law is responsible for:
I – deal with conflicts of jurisdiction, in tax matters, between the Union, the States, the Federal District and the Municipalities;
II – regulate constitutional limitations on the power to tax;
III – establish general rules on tax legislation, especially on:
c) adequate tax treatment of the cooperative act carried out by cooperative societies.
Art. 174. As a normative agent and regulator of economic activity, the State will exercise, in accordance with the law, the functions of inspection, incentive and planning, this being decisive for the public sector and indicative for the private sector. (See Law No. 13,874, of 2019)
§ 2 The law will support and encourage cooperativism and other forms of associations.
The power limit of the Lobo Neves Resolution would be easily exceeded (in a short time by a single photovoltaic minigeneration plant) by the constitutional principle of freedom of association for lawful purposes, en passant more advanced and ambitious than the Lobo Neves Resolution. And behold, Marcela appears, right? Forgive me Machado, but you represent for this writer and for scholars from foreign universities the best in political, geopolitical, economic and social thought. Bravo, very brave!
As for the descendants of the character in question, Mineira Law No. 23762/2021 and the new Federal Law 14300/2022, let's send them to a pleasant retreat, in the Lobo Neves way and that's it. The limit of 5 (five) Mega Watts is ridiculous! Let’s create our future without the uncomfortable, anachronistic and outdated presence of Lobos Neves…
By the way, I filed a Popular Action against the Mining Law that establishes a maximum exemption limit for mini generation of energy collected by the photo voltaic system at a negligible 5 (five) mega watts – for Mini Energy Generation - this is Aneel's thing, and I wrote another article on the subject, which will be published on the website Direitopublico.com.br, with the following title: The timid exemption established in State Law 23,762/2021, of the State of Minas Gerais. In my modest way of focusing on the topic – the genesis and the generating event – abundant solar energy – should not be the object of any kind of tribute, as we would quickly arrive at a clumsy kind of taxation on the clothes stretched on clotheslines to take advantage of solar energy. sun to dry them. This even disgusts common sense, don't you think? A triggering event – say Ataliba – is not just a tax concept or a pleasant dogma such as “pecunia non olet”. The world and technology have changed, contrary to the minds of legislators, some visits by noble parliamentarians to the headquarters of Absolar in São Pulo and Revolusolar, in the community of Babilônia, would be advisable. Furthermore, I will insist on the SCREAMING UNCONSTITUTIONALITY OF THIS TYPE OF EXACTION, FRANKENSTEINEAN, OR MACUNAÍMIC, if you prefer.
Big hug
My dearest friends
Now look! The simple scientific fact of the origin of energy – in this case – solar, contaminates the taxable event of the ICMS. Or maybe not? On the other hand, should we disregard the positions taken by world leaders at conferences on the environment and climate change? There is much more at stake than a body of tax laws, governing – let's face it – AN AUTHENTIC ABSURD, although the competence to legislate on energy is exclusive to the Union. Even so, as this is a true revolution in energy collection technology, I understand, with due regard for opposing positions, it would be – constitutionally – necessary for the Union to issue a Complementary Law.
Big hug
Bruno Rezende Palmieri
Author of the second comment article
In the preamble, we ask legal professionals at all levels: is it constitutional to charge ICMS when the taxpayer produces energy to be consumed in the domestic environment, from the capture of solar energy, without any competition from the structure of energy concessionaires? ? Now look, let's go back to the basics of Civil Law when the different types of goods are classified, movable, immovable, moving and things placed outside of commerce. It is laughable to forget the importance of such concepts, taught in the early years of the Law Course. Solar energy, the force of the wind, the coming and going of the tides, rain, how could they be classified from a civilist perspective? We must therefore examine the premise of art. 69 of the Civil Code of 1916 – (stressing that there is no correlation of this norm with any provision of the current Civil Statute), combine it with art.110 of the CTN, as well as with art. 146 of the Federal Constitution. The doctrine, in addition, will be responsible for clarifying and perfecting EVERYTHING THAT THE ORDINARY LEGISLATOR DIDN'T SEE... AND DIDN'T SEE BECAUSE HE DIDN'T WANT TO... Going deeper into the study, questions of Tax Law emerge that are not at all unknown to a Law student - where would they be? the Complementary Law required by the Fundamental Charter to define the triggering event indispensable for the collection of the tax in question? Going further, would it be legally possible to establish a consistent taxable event in the use of solar energy, dispensing with state activity? Would it be possible to make a tax assessment with the triggering event being something placed outside of commerce, in the words of the Civil Code of 1916 – levying a tax on sunlight? Let's face it, teratology is too obvious and evident. This would result in the absolute eversion of the Democratic Rule of Law, the foundation, basis and presupposition of our country's normative structure. (you'll see, it's another jabuticaba...)_In a distant historical quadrant, Archimedes defended Syracuse with the use of mirrors, concentrating and converging solar rays, directing them towards the sails of Roman vessels, setting them on fire, during the various attempts to capture of that kingdom. It turns out that neither Archimedes nor any other scientist was able to store and conserve, for a long historical period, the energy coming from the star-king. However, today, Australian universities, schools and students have been developing research into this type of clean fuel, powering the batteries of vehicles competing in competitions, using solar energy in that country. Science and Technology have advanced by leaps and bounds, without a shadow of a doubt. Absurd, perhaps insurmountable, is the thought of taxing sunlight. Soon some kind of clumsy tribute would appear, burdening families by hanging clothes on the line to dry them. This would be absolutely RIDICULOUS… Archimedes says so!
We then have, in a rough examination, the possibility of imposing a tax that does not exhibit, not even due to strong myopia, the event generating the ICMS, whose tax design is well defined in art.155 of the CTN. Art. 155. It is up to the States and the Federal District to impose taxes on: I – transmission causa mortis and donation, of any assets or rights; II – operations relating to the circulation of goods and the provision of interstate and intermunicipal transport and communication services, even if the operations and services begin abroad;
Can sunlight be classified as a commodity? This way, the beaches would be deserted, the jobs of street craft vendors would disappear, the kiosks where the much-loved coconut water is sold would also disappear, nor would the lifeguards be able to carry out their noble duties. And what about photosynthesis? What about Carbon credit?
The Fundamental Law of the Republic, in turn, in art. 155, II, provides a sufficient description of the event generating the ICMS, as is known, a tax that is the responsibility of the States and the Federal District.
Art. 155. It is up to the States and the Federal District to impose taxes on: (Wording given by Constitutional Amendment nº 3, of 1993)
II – operations relating to the circulation of goods and the provision of interstate and intermunicipal transport and communication services, even if the operations and services begin abroad; (Wording given by Constitutional Amendment nº 3, of 1993)
Now, after boring the reader with this tedious text, we should conclude it by leaving the fundamental question remaining: if any taxpayer is capable, as Australian students are, of producing the necessary light energy for their own consumption, which jurists would be? willing to espouse reckless and lame theses, where this type of energy – except, when produced without state support – could prefigure a generating event – circulation of goods, in operations that are neither remotely nor remotely mercantile? Use or use this energy only for the operation of household appliances? No profit purpose?
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AMARO. Lucian. Brazilian Tax Law. 18th ed. São Paulo: Saraiva. 2012.
BALEEIRO, Aliomar; update from Mizabel Abreu Machado Derzi. Brazilian Tax Law. 15th ed. Rio de Janeiro: Forense, 2001.
CAMPOS, Djalma. Tax Procedural Law. 9th ed. São Paulo: Atlas, 2007.
CARRAZA, Roque Antonio. Constitutional Tax Law Course.29th ed. São Paulo: Malheiros, 2013.
HARADA, Kiyoshi. Financial and Tax Law. 22nd ed. São Paulo: Editora Atlas. 2013.
JARDIM, Eduardo M. Ferreira. Financial and Tax Law Manual. 12th ed. São Paulo: Saraiva, 2011.
MACHADO, Hugo de Brito. Tax Law Course. 34th ed. São Paulo: Malheiros, 2013.
MAXIMILIANO. Carlos. Hermeneutics and application of law. 193 ed. Rio de Janeiro: Forensic,
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SABBAG. Eduardo de Moraes. Tax Law Manual. 5 ed. São Paulo: Saraiva, 2013.
TORRES, Ricardo Lobo. Financial and Tax Law Course 18th edition. Rio de Janeiro: Renovar, 2011.
Following the same concept as other states that started to zero ICMS on solar energy credits, the state of São Paulo should follow the same path.
Or perhaps a collective action against the State of São Paulo and ENEL-SP will be necessary to resolve this soon.
This ends up taking away any incentive we have to purchase a solar photovoltaic system.
Soon they will charge ICMS, on O2, nitrogen, and other gases that we breathe, the Brazilian state is too swollen, and in the name of this extremely large mass, which our Rulers justify. All it takes is to reduce the size of the Brazilian State for this spree to end.
I think you didn't understand anything. There is no tax charged on solar energy. It is very clear that we do not pay tax on the TE we generate.
However, we are charged tax on the service provided in the form of ICMS on TUSD. Here is the absurdity. We charge a tax on what we are generating and recovering in credits as the Tusd fee must also be offset in credits. It's a pretty big hassle because as the tusd is also offset, it doesn't generate a calculation basis for this charge. I even saw a request for review of ICMS for the last 5 years on the Tusd tariff even when there was no solar generation. It's a shame that the single tax proposal that emerged at the end of the 80s never went ahead. It's a lot of taxes everywhere. An abuse of public power towards citizens.
Well, the same country, in fact, the same world that charges taxes on all types of food. After all, when do you buy protein, carbohydrates or lipids?
What country is this? Which charges taxes on energy produced by the sun.
The state acts as a bloodthirsty dictator over the Brazilian taxpayer.
The state shoots itself in the foot, as it inhibits entrepreneurs from generating more jobs and sustainable development for the country.