The justices of the Federal Supreme Court (STF) unanimously overturned the laws of the states of Pernambuco, Piauí and Acre that instituted a higher ICMS tax rate on energy and telecommunications. According to the judges, the rate cannot exceed that applied to transactions in general. In practice, this percentage varies from 17% to 18%, depending on the state.
The ministers also voted for the decision to take effect from 2024, except for actions filed up until February 5, 2021.
This means that anyone who went to court before that date will be able to request a refund of amounts paid unduly in the five years prior to filing the lawsuit, the prescriptive period for collecting tax credits.
The rapporteur, Justice Gilmar Mendes, applied the precedent set by the STF in the judgment of RE 714139 (Theme 745 of general repercussion). He was accompanied by all the other justices.
The three actions make up a package of 26 ADIs filed by the PGR questioning state laws on the subject.
In the judgment of these cases, the STF has already overturned the increased ICMS rate on energy and telecommunications in 15 federative units: Santa Catarina, Federal District, Goiás, Minas Gerais, Pará, Rondônia, Tocantins, Rio Grande do Sul, Ceará, Paraíba, Paraná, Amapá, Amazonas, Roraima and Sergipe.
