In mid-month, the Superior Court of Justice (STJ) ruled that the Transmission System Usage Tariff (TUST) and Distribution System Usage Tariff (TUSD) constitute the ICMS calculation basis. The ruling was made using the repetitive appeals system, meaning this understanding will likely be replicated by other courts across the country.
According to the ruling, the national electricity system encompasses several interdependent and interconnected stages, such as generation and production, as well as import, transmission, and distribution. Furthermore, it argued that these fees are passed on to the end consumer and, therefore, should be included in the ICMS tax calculation basis.
It’s worth remembering that for a long time, the Courts’ case law favored taxpayers. In fact, even the rapporteur’s vote initially favored the thesis. However, Justice Herman Benjamin decided to change his position, and the other justices followed suit.
Precisely because of the radical inversion of jurisprudence, the STJ modulated the effects of the decision so as not to reach those taxpayers who had a favorable decision, as long as it was issued before 03/27/2017, the date on which the 1st Panel of the STJ changed its understanding, giving the state tax authorities the benefit of the doubt.
In our understanding, the modulation of the effects of the decision considering March 27, 2017 as the cut-off date is quite flawed, because several 2nd instance decisions favorable to taxpayers were issued in the years following this event.
Finally, it’s worth noting that the STJ’s decision covers the period prior to the enactment of Complementary Law (LC) 194/2022, which expressly excluded the TUST/TUSD from the ICMS tax base. The constitutionality of LC 194 is being discussed by the Supreme Federal Court (STF) in ADI 7195. The STF suspended the provisions that excluded ICMS from tariffs, which were in effect until the merits of the ADI were decided. Judging by the way things are going, it’s easy to guess how the discussion will unfold…
