The ministers of the Federal Supreme Court (STF) formed a score of 9X1 to define that the decision that recognized the unconstitutionality of an increased ICMS rate on energy and telecommunications takes effect from 2024, except for actions filed until the date of the beginning of the judgment on the merits, that is, 2/5/21.
In practice, this means that taxpayers who went to court before that date will be entitled to a refund of amounts overpaid in the five years prior to filing the lawsuit.
The only minister who disagreed was Edson Fachin. For him, there should not even be modulation, which would mean that all taxpayers would be entitled to a refund in the five years prior to filing the lawsuit, regardless of the date on which they filed the lawsuit.
“Any modulation would lead to factual results that are considered incompatible with our legal system, since it would validate charges considered unconstitutional. In this sense, the taxpayer would be responsible for paying amounts that were collected erroneously, while at the same time the Union would be enriched without cause,” wrote Fachin in his vote.
In theory, until the end of the virtual trial, at 11:59 pm this Friday (12/17), a minister can request a highlight. In this case, the trial would go to the plenary, and the vote count would be restarted. The expectation, however, is that this will not happen and that the trial will end this Friday.
Decision binds the Judiciary
The specific case involves the state of Santa Catarina, which applies an ICMS rate of 25% for the energy and telecommunications sectors, compared to a general rate of 17%.
Since this is an extraordinary appeal, the decision, if confirmed, will not overturn the law of the state of Santa Catarina. It will only have an effect on the parties, with the reduction of the tax rate for Lojas Americanas SA in the state of Santa Catarina.
However, since it has general repercussions, the decision is binding on the Judiciary. Thus, in addition to any individual actions, the understanding should be applied in the judgment of direct actions of unconstitutionality, overturning state laws. Until then, however, the laws remain in force.
In an article published on December 9, JOTA showed that, given the start of the trial of the case at the STF, states registered a cascade of lawsuits throughout 2021 questioning the constitutionality of an increased ICMS tax rate on electricity and telecommunications. In the states of Santa Catarina, Rio Grande do Sul, Espírito Santo, Pará and Mato Grosso do Sul alone, taxpayers filed 774 lawsuits this year questioning the increased tax rate on these services.
Now, with the conclusion of the trial on the modulation of effects, the expectation is that taxpayers will file direct actions of unconstitutionality, in order to overturn state laws.