STJ decides that TUST and TUSD are part of the ICMS calculation basis

O STJ (Superior Justice Tribunal) decided, this Wednesday (13), unanimously, that electricity transmission and distribution tariffs (TUST and TUSD) are components that make up the ICMS calculation basis (Tax on Circulation of Goods).

You Ministers followed the rapporteur's vote, Minister Herman Benjamin, who argued that the national energy system is composed of interdependent stages, integrating generation, transmission, distribution and consumption, and that they could not be “sliced”.

O judgment was relevant for involving both the low and medium voltage consumers, including residential ones, such as large energy consumers, such as hospitals, shopping malls and industries.

As the decision was unanimous and the thesis is repetitive, the Lower instances of the Judiciary will have to follow them.

Behind the scenes, the decision was celebrated by state governments, who had been exerting strong pressure to maintain the tax so as not to lose revenue.

For taxpayers – who claimed that the form of taxation was illegal – the feeling was frustration, since a favorable decision could significantly reduce the price of electricity for consumers.

“It is a decision that directly impacts the consumer, because these components represent, on average, almost 50% of the energy tariff. If the STJ had considered that it is not taxed, around 17% of the value would not fall under this portion of 50%”, he said Thiago Bao Ribeiro, CEO of the office Bao Ribeiro Advogados.

In the case of professionals who work at the Mercado Livre de Energia the decision also has impacts, since the components paid by these consumers are very high, according to Bao Ribeiro.

“I have clients who were under an injunction (not to pay the ICMS components) and who were having savings on each plant of R$ 2,500 to R$ 3,000 per month”, commented the lawyer.

Understand the situation

To the discussions on whether or not TUST and TUSD are components that should be part of the ICMS calculation basis had been dragging on in Brazil since 2009, but only now has there been a final decision on the topic.

It all started after countless companies – who were defeated in this Wednesday’s trial – went to court argue that the collection of ICMS on TUST and TUSD should not occur because the tariffs were additional and, therefore, the collection of state tax should be “outside”.

O The topic has even been analyzed by the STF (Supreme Federal Court), which decided that this matter had no constitutional aspect, with the STJ being the appropriate court to analyze the case. O STJ, then, decided to analyze the case to put an end to this story.

You ministers, therefore, decided that it is not possible to separate TUSD and TUST from the energy tariff. “Now, this discussion is over,” said Bao Ribeiro, highlighting that all consumers – even those in the Free Energy Market – will have to pay an additional amount of ICMS on their energy bills.

Modulation

In this Wednesday's vote, the STJ ministers also chose to modulate the effects of the decision taken by them, since thousands of injunctions have been granted in recent years so that consumers would not have TUSD and TUST applied to the ICMS calculation basis.

It was decided, with this, that the consumers who even the day March 27, 2017 have benefited from injunctions will be able to collect ICMS without the inclusion of TUST and TUST in the calculation base, as long as the anticipation of guardianship is in force until now.

However, These consumers will only be able to benefit from lower taxation until the publication of this Wednesday's decision. After that, everyone must submit to the “full” payment of the tax, with the inclusion of both rates in the calculation base.

With modulation, Those who did not file a lawsuit in court and those who obtained the injunction after the time frame will not benefit.. It was also decided that final and unappealable decisions, favorable to the taxpayer, will be analyzed on a case-by-case basis.