The volume of rulings granted by several courts on the country, aligned with the current understanding of the Superior Court of Justice, have motivated consumers to file lawsuits seeking to see declared (and therefore not due) the inclusion of two public fees (Fee for the Use of Electric Systems – TUSD and Fee for the use of Electric Transmission Systems – TUST) on the calculated basis of ICMS.
The exclusion of such public fees for the calculation basis of ICMS is justified because there is no legal relation between these fees and tax triggering event of ICMS (which is the effective consume of energy) because such fees are due on the installation and maintenance of equipment (hence, before de ICMS triggering event) and not on the effective consume of energy.
Moreover, it should be noted, for example, that the assignee responsible for the distribution and transmission of energy, when acting as merely allowing the transfer of energy on its network (between a “free consumer” and a supplier of its choice do not engage in the buying and selling of energy.
The STJ precedents is uniform in favor of the taxpayer in the sense that the public fees TUST and TUSD are not part of the calculation basis for ICMS and indeed apply Understanding n. 391 of the STJ. Nevertheless, such decisions only apply to taxpayers that decided to file lawsuits. As such, in order to enjoy this reduction of their ICMS levied of consume energy, taxpayers must file lawsuits claiming the exclusion of public fees TUSD and TUST from the tax basis of ICMS.
Raphael de Campos Martins was an associate and partner at Pacheco Neto Sanden Teisseire Law Firm.
Allander Batista was lawyer in tax area at Pacheco Neto Sanden Teisseire Law Firm.
Daniel Miotto was Partner at Pacheco Neto Sanden Teisseire Law Firm.
