In the context of fiscal federalism, the Union cannot intervene in the way in which states exercise their tax powers, even through complementary law, as this exceeds its constitutional power.
With this understanding, the Plenary of the Supreme Federal Court confirmed an injunction from Minister Luiz Fux that included the tariff for the use of the electricity transmission system (Tust) and the tariff for the use of the electricity distribution system (Tusd) in the ICMS calculation basis. The virtual trial ended last Friday (3/3).
The Direct Action of Unconstitutionality was filed by governors of ten states and the Federal District against article 2 of the complementary law, which modified the Kandir Law.
They argued that the ICMS calculation basis for electricity taxation covers the value of all transactions, and not just actual consumption. Therefore, the TUST and TUSD, known as sectoral charges, would be included. In addition, they alleged a violation of the federative pact, due to the restriction of the states' autonomy.
When suspending the contested provision last February, Fux considered that the supplementary law went beyond its power to deal with issues related to ICMS. In his new vote, he reiterated his arguments.
The Constitution refers to the payment of tax on “transactions” related to the circulation of goods in the electricity sector. For the rapporteur, the term “transactions” refers not only to actual consumption, but to “the entire infrastructure used for this consumption to take place, that is, the energy transmission system”.
The minister also took into account the billion-dollar losses to state coffers, which could fail to collect around R$15T 16 billion every six months. According to the authors, such losses compromise the provision of basic services to the population.
The National Consumer Secretariat (Senacon) had already requested that the states exclude Tust and Tusd from the ICMS base, so as not to harm the rights of electricity consumers.
Other votes
Only two ministers did not fully agree with Fux's understanding. Gilmar Mendes voted to ratify the injunction, but made reservations about the rapporteur's reasoning.
He agreed that the rule violated the drafting procedures provided for in the Constitution. However, he considered that it would be better to discuss the content of the article only in the judgment on the merits of the ADI, due to the complexity of the matter.
André Mendonça disagreed with the rest of his colleagues, but reached the same conclusion that it would be necessary to suspend the effects of the device in question.
The judge recalled that the STF had already denied general repercussion in a case regarding the inclusion of Tust and Tusd in the ICMS calculation basis, as it understood that the issue did not go beyond the infra-constitutional level. Therefore, to accept Fux's grounds, the court would have to review the issue.
In Mendonça's view, "either the matter relating to the calculation basis for the ICMS levied on electricity is eminently constitutional, making minimally innovative action on the part of the federated entities inadmissible"; or, then, the states and the Federal District are free to define, in their tax laws, whether the Tusd and Tust comprise the ICMS. In any case, for him, Congress can decide which elements do or do not comprise the calculation basis.
Even so, the minister recalled that, in December of last year, the Plenary approved an agreement between the Union and the states on the ICMS (Tax on Energy and Social Security) on fuels. At the time, it was agreed that the issue of energy tariffs would be debated by a working group.
Thus, Mendonça considered it appropriate to suspend the rule of the complementary law, in order to “guarantee minimum conditions of possibility for the self-composition alternative to the intricate federative and fiscal conflict in question to prosper”. Thus, he voted to maintain the injunction until the end of the working group.
The same issue discussed in the ADI is pending judgment of repetitive appeals in the Superior Court of Justice (Theme 986).
Click here to read Fux's vote
Click here to read Gilmar's vote
Click here to read Mendonça's vote
ADI 7.195
Source: https://www.conjur.com.br/2023-mar-06/stf-confirma-inclusao-encargos-setoriais-energia-icms