Understanding that the satellite capacity provision service does not constitute a telecommunications activity, the 1st Panel of the Superior Court of Justice decided that ICMS is not applicable to this transaction. Unanimously, the panel denied two appeals filed by the Rio de Janeiro State Treasury seeking to classify this service as a taxable activity.
The Treasury highlighted that the General Telecommunications Law provides that ICMS is levied on the provision of onerous communications services, and that the service of providing satellite capacity to other companies would fall within this concept.
Thus, the Treasury sought to collect more than R$500 million in ICMS that would be owed by Claro for the provision of satellites. Star One for use by other telecommunications companies.
The request was rejected by the Court of Justice of Rio de Janeiro on the grounds that satellites are merely means made available for other companies to provide telecommunications services.
According to the rapporteur of the cases at the STJ, Minister Benedito Gonçalves, the activity in question is not a communication service, but rather a supplement to it.
“The satellites made available are nothing more than means for providing the communication service, and it is irrelevant for the tax subsumption to argue that there is retransmission or amplification of the signals sent,” explained the minister.
He also highlighted that the National Telecommunications Agency (Anatel), in its various regulations, does not consider the provision of satellite capacity as a telecommunications service.
The rapporteur said that the STJ's case law is clear that supplementary services and support activities are not subject to ICMS. In the case of satellites, he explained, they merely reflect the radio waves that fall on them and do not participate in the processing of the information emitted by these waves.
“As the doctrine warns, the third party that simply provides, even for a fee, the means necessary for the enjoyment of communication services will have already fulfilled its legal duty by simply making such means available”, pointed out the minister when quoting professor Roque Antonio Carraza.
Finally, Benedito Gonçalves mentioned the STJ's understanding in Theme 427 of repetitive resources, according to which ICMS only applies to the telecommunications service itself, and not to support activities and supplementary services. With information from the STJ press office.
RESP 1,473,550
RESP 1,474,142
Source: https://www.conjur.com.br/2022-jan-27/nao-incide-icms-servico-provimento-capacidade-satelite