The STF maintains the ICMS collection of energy tariffs

The Federal Supreme Court (STF) formed a majority to uphold the ICMS collection of electricity transmission (TUST) and distribution (TUSD) tariffs. The virtual plenary started last Friday the 24th and continues until tomorrow the 3rd. Of the eight ministers voted for, only Andre Mendonza disagrees so far.

The court confirmed the February 9 decision of Judge Louis Fuchs. The decision granted the request of states that claim that the loss of billionaires by the TUST/TUSD tax deduction. The initial measure suspended changes to the ICMS calculation base established by Supplemental Act 194 approved by Congress last year. The Act also fixed the ICMS rate ceiling for electricity, fuel and other items classified as essential services.

In voting in favor of the charge, Fuchs considered the impact on the public treasury that the states pointed to. “It is estimated that every 6 months the provinces fail to collect approximately R$16 billion, which may also have an impact on the collection of municipalities, as the Federal Constitution stipulates that 25% of the revenue collected by the provinces through ICMS : should be transferred to the municipalities,” said Fuchs’ decision.

In practice, despite the statutory change, most states continued to charge energy transmission and distribution tariffs. According to a survey conducted at the request of the National Association of Energy Consumers (Anace), 19 states did not comply with the norm.

Fuchs also considered the situation of non-compliance with the law. “The reason why states continued to levy the tax is related to the difficulty of regulating the content of the supplementary law, given the complexity of the components of the electricity tariff. In other words, without treasury departments regulating how they should be excluded, it is not possible to reduce the calculation base of ICMS,” he wrote.

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