Supreme Federal Court (STF) validates the return of ICMS credits to energy consumers

The STF (Supreme Federal Court) concluded this Thursday (14) the trial that confirmed the validity of Law 14.385/2022. The rule guarantees that electricity distributors fully pass on to consumers the tax credits obtained after the exclusion of ICMS from the PIS/Cofins calculation base — amounts that had been charged unduly in the past.

In the Court's understanding, the deadline for the refunds to be made will be ten years, counting from the moment the companies receive the credits back or have the compensation definitively approved.

The decision establishes that, when making the transfer, distributors may deduct taxes levied on the refund and legal fees paid specifically to guarantee these resources in court.

Since 2021, more than R$44 billion has been returned to consumers through reductions in electricity tariffs, according to data from ANEEL (National Electric Energy Agency). For this year, the forecast is that another R$5,8 billion will be transferred.

It's not yet clear whether the decision will affect tariffs in the coming years. In some cases, electricity bills may be adjusted to reverse amounts already refunded, but ANEEL stated that he will only make a statement after the official publication of the ruling.

Context of the action

The dispute reached the Supreme Federal Court through a lawsuit filed by Abradee (Brazilian Association of Electricity Distributors). The organization challenged points of the law, claiming that the new allocation of funds already transferred would violate acquired rights and alter the effects of already concluded court decisions.

The distributors' argument was that the credits incorporated into the companies' assets could not be redistributed to consumers under new rules. However, the Supreme Court rejected this interpretation, prioritizing full refunds to service users.

Pillars of the decision

In the session, the ministers defined that:

• The prescriptive period for return is ten years, counted from the effective restitution or approval of the compensation made.
• The deduction of taxes and specific attorney fees related to the recovery of credits is permitted.

The understanding was considered more favorable to consumers, since shorter deadlines or different counting milestones could allow distributors to retain a significant portion of the amounts.

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