By nine votes to two, the ministers of the Federal Supreme Court (STF) understood that the default of the user of telecommunications services does not eliminate the incidence of ICMS to be paid by the provider company. The Court's understanding prevailed that with the request the company would be trying, without constitutional support, to pass on to the public treasury the risks of its economic activity.
The Supreme Court upheld the understanding of the 2nd Panel of the Superior Court of Justice (STJ) on the matter. The trial was held in a virtual plenary session until May 14.
Global Village Telecom (GVT) filed an extraordinary appeal with the Supreme Court against a ruling by the Superior Court of Justice that denied the possibility of ICMS compensation by the operator in cases where the consumer does not pay for the contracted telecommunications services. The discussion takes place in RE 1,003,758.
According to GVT, charging ICMS on the provision of unpaid services constitutes a confiscatory effect and violates the principle of taxable capacity. Furthermore, the company claimed that it is unable to pass on the amount spent on the tax to the end consumer.
The Public Treasury of Rondônia, a party to the process, argues that the ICMS compensation in this case would imply the creation of a new form of tax credit extinction not provided for by law, which is outside the scope of the Judiciary Branch.
In the STF, the vote of Minister Alexandre de Moraes prevailed, who disagreed with the rapporteur, Marco Aurélio. For Moraes, the user's default does not constitute a legal exclusion from the tax, so that the operator's thesis would imply a direct violation of the principle of tax legality and the Federal Constitution.
According to the minister, “what the appellant actually intends to do is – under the pretext of enforcing the principles of non-cumulativeness, tax capacity and prohibition of confiscation – to pass on to the public treasury the risks inherent to its economic activity, in the event of any default by its consumers/users, which has no constitutional basis and, therefore, it is absolutely inadmissible to accept such a claim”.
Moraes established the following thesis: “the user’s default does not eliminate the incidence or collectibility of ICMS on telecommunications services”. Ministers Nunes Marques, Dias Toffoli, Rosa Weber, Cármen Lúcia, Gilmar Mendes, Luiz Fux, Ricardo Lewandowski and Roberto Barroso agreed with the dissenting opinion.
Rapporteur: default gives right to credit
The rapporteur, Justice Marco Aurélio, understood that, “if there is no consideration on the part of the user, there is no wealth to justify taxation, and the telephone operator has the right to credit the amounts collected on the transaction”. Therefore, the operator can take advantage of the ICMS amounts collected on transactions in which the user is in default.
The rapporteur suggested the following thesis: “it is the taxpayer’s right to use amounts collected as Tax on the Circulation of Goods and Services – ICMS, in relation to transactions related to the provision of communication services, when the user defaults.” Minister Edson Fachin agreed with Marco Aurélio.