Minister Luiz Fux, of the Federal Supreme Court (STF), suspended part of the law that excludes the collection of distribution and transmission fees in the calculation of the Tax on Circulation of Goods and Services (ICMS) on the electricity tariff.
With the suspension, the states will be able to charge again the fees called tariff for use of the distribution system (TUSD) and tariff for use of the transmission system (TUST) on the basis of tax calculation in the tariff.
The calculation was changed by Complementary Law 194/2022, which defined the application of ICMS rates at the floor (17% or 18%) for products and services related to fuels, natural gas, electricity, communications and public transport.
In the decision, Fux argues that, by legislating on the subject, the “Union has exorbited its constitutional power, meddling in the way in which the member states exercise their tax competence”.
The minister also mentioned estimates that the states will stop collecting about R$ 16 billion each semester with the withdrawal of fees. “The urgency of the measure can also be extracted from the values presented by the author entity that account for billionaire losses suffered by the state coffers thanks to the questioned legislative measure. According to information provided, the estimate is that, every six months, the states fail to collect approximately R$ 16 billion, which may also have an impact on the collection of municipalities, since the Federal Constitution determines that 25% of revenue collected with ICMS by the states should be passed on to the municipalities”, he said.
The request for suspension was submitted by the National College of Attorney Generals of the States and the Federal District (Conpeg). The decision is provisional and must be endorsed by the Court.
