EN 
PT_BR 
A recent decision by the STF (Supreme Federal Court) brought an important signal to consumers who produce their own electricity and, consequently, to the electricity market. MMGD (micro and mini distributed generation) power.
On January 9, when analyzing an extraordinary appeal filed by the State of Mato Grosso, the Court's plenary session recognized that the discussion of the incidence of ICMS on TUSD (Tariff for Use of the Distribution System) in cases of MMGD.
According to the lawyer Uriah Martiniano, from UMN Advogados, the STF clarified that the legal demand must be dealt with in the STJ (Superior Court of Justice) because it is not a constitutional matter.
“In fact, if we read the issue, although there is still some controversy, the STJ itself has already recognized that ICMS does not apply to installments that do not aim to remunerate electricity, so the tax should not be levied on contracted demand and TUSD“, he explained in an interview with Solar Channel.
The legal demand came from a consumer benefiting from MMGD who questioned the ICMS charge on TUSD for State of Mato Grosso. This consumer achieved a favorable decision. At the time, the TJMT (Court of Justice of Mato Grosso) agreed that there should be no ICMS charge on TUSD.
However, in the view of the State of Mato Grosso, the Federal Constitution provides for taxation of all energy supply operations, without distinction for micro and mini generation. Therefore, the state filed an extraordinary appeal with the STF. The tendency is for the State to file a new appeal with the STJ.
“In our office’s understanding, ICMS should not be levied on the portion that does not aim to remunerate electricity, for example on TUSD and Contracted Demand”, defended the lawyer.
Martiniano recalled that, under Agreement No. 16/2015, electrical energy is exempt from ICMS charges for micro and mini generation of energy for plants of up to 1 MW, as long as they have the same ownership.
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