Minister Luiz Fux, of the Federal Supreme Court (STF), suspended this Thursday (9/2) the effectiveness of a provision of Complementary Law (LC) 194/22 that defines that TUSD and TUST are not part of the ICMS calculation basis. The injunction was granted within the scope of ADI 7.195, through which the states challenge the complementary law.
For the judge, there are indications that the Union exceeded its regulatory power when regulating the incidence of ICMS. “In a cursory examination of the issue, characteristic of this procedural moment, the possibility arises from the context given that the Union exceeded its constitutional power, interfering in the manner in which member states exercise their tax jurisdiction”.
Furthermore, according to Fux, article 2 of LC 194, which amended the Kandir Law (LC 87/96) to provide that TUSD and TUST should not be included in the ICMS base, may impact municipalities, which receive part of the tax collected by the states.
The granting of the injunction meets the request of the states, which alleged billion-dollar losses due to the removal of TUSD/TUST from the ICMS base. According to the federative units, the provision implies a loss of R$16 billion every six months.
The injunction was granted less than a month before the merits trial of ADI 7,195, which is scheduled for the period between February 24 and March 3, through the virtual plenary.
Read the full decision by Minister Luiz Fux.