The Cellular Operators Association (Acel) filed, this Tuesday (2/14), an argument of non-compliance with a fundamental precept (ADPF) questioning decrees from Bahia and Mato Grosso do Sul that increased the ICMS rates levied on energy and telecommunications to levels prior to the enactment of Complementary Law (LC) 194/22. According to the organization, Decrees 16,073/2022 (MS) and 21,796/2022 (BA) are irregular because they do not respect the noventena.
Through ADPF 1046, which does not yet have a rapporteur, the entity also requests the granting of a precautionary measure, guaranteeing the immediate suspension of the rules for a period of 90 days from their publication.
Even though LC 194 states that energy and telecommunications are essential — and cannot be taxed above the modal ICMS rate in the states — at least three states (Mato Grosso do Sul, Bahia and Piauí) chose to increase the tax rates on goods. The federative units based their decision on the STF's modulation of effects in the ADIs through which state laws that provided for higher rates for energy and telecommunications were overturned.
The ADIs were analyzed throughout 2022, and the ministers applied the result of RE 714,139 to them: they declared the rules unconstitutional, but modulated the decisions so that they would take effect from 2024. In practice, the STF allowed the federative units to maintain the increased rates until the end of 2023.
When increasing the rate again at the end of 2022, however, Mato Grosso do Sul and Bahia did not foresee the observance of the noventena, establishing that the increased percentages would come into effect from January 1, 2023. Piauí, on the other hand, defined respect for the noventena and the annuality.
“The federated entities, in addition to invoking modulation to avoid being subject to the effects of the Complementary Law, act as if it had never produced effects, resuming the previous taxation without respecting any period of prior existence”, argues Acel in the ADPF.