Exclusion of TUSD / TUST from the ICMS tax base
In recent years, the Courts have recognized that the tariffs of the TUSD (Distribution System Use Rate) and TUST (Rate of Use of the Transmission System) should be excluded from the State Goods and Services Tax (ICMS) calculation basis.
In summary, the TUSD / TUST are the tariffs charged in the consumer account of large consumers commonly called free consumers, who are those “who buy energy directly from generators or traders through bilateral contracts and with freely negotiated conditions such as price, term, volume, etc., but use the common distribution network. In this environment, it is possible for the consumer to choose, among the various types of contracts, the one that best meets their expectations of cost and benefit “[¹].
TUST is related to the use of the power transmission system, considering that the service of transportation of electric energy is carried out through a network of transmission lines and substations, called Basic Network. While TUSD is linked to the use of the power distribution system, due to the use of facilities, equipment and distribution network components used to bring energy to the consumer (e.g. poles, insulators, wires and transformers).
Although it is illegal to collect the ICMS by computing the TUSD and TUST rates at their base, the tax authorities of the Brazilian States have indistinctly incorporated such amounts into the tax base. However, the jurisprudence of the Superior Court of Justice – STJ, had already been established in the sense that the taxable event of the ICMS on electric energy presupposes its actual consumption, and the tariffs charged in the previous phase of the distribution system should not compose the value of the merchandise exit operation delivered to the consumer.
We also emphasize that the amount paid under TUST and TUSD does not remunerate the consumption of electric energy (fact that generates the state tax), but only the availability of the system to the consumer.
Regarding the topic, we point out that the Supreme Federal Court – STF, in the judgment of the Extraordinary Appeal No. 1,041,816 / SP, in general Repercussion, understood that the discussion does not have a constitutional matter, and therefore, the STJ will have the final word of the discussion.
On the subject, we have the trial occurred in March 2017, in which the 1st Panel of the Superior Justice Tribunal (STJ, REsp 1,163,020) understood the legality of the inclusion of TUSD in the calculation basis of ICMS on the grounds that the state tax should be calculated on the price of the operation, therein embedded at any and all costs. However, this understanding did not last because, in the April judgment, the STJ’s 2nd Panel, by unanimous vote (REsp. Nr. 1,649,658), confirmed the position already established in the Court that “The tariff charged in the previous phase of the distribution system does not make up the value of the merchandise exit operation delivered to the consumer.”
Despite the divergence between the STJ Panels, the legality of the inclusion of TUST / TUSD in the calculation basis of ICMS will be defined in the judgment of Topic nº 986 / STJ (REsp nº 1.692.023, REsp nº 1.699.851 and EREsp nº 1.163. 020), which shall be binding on other courts.
Therefore, the outcome of the trial will be applied to all cases on the issue, which are currently suspended by decision of Minister Herman Benjamin. In addition, in the case of favorable taxpayers’ judgment, the STJ may establish a modulation of effects, limiting the right to restitution / compensation of amounts unduly paid in the last 5 years only to those taxpayers who are already questioning the collection in court.
In view of this scenario, we recommend the preventive filing of the lawsuit and avoid the effects of eventual modulation to the subject, allowing the recovery of the amounts unduly collected from the last 5 years counted from the filing of the lawsuit, plus default interest and monetary correction.
The office Velloza Advogados is available to its clients for the clarification of any doubts and analysis of the appropriate measures in each case.
[1] Source: National Electric Energy Agency ANEEL.
