The first class of the Superior Court of Justice (STJ) decided, on that last Wednesday (22), for the legality of the collection of the tax on circulation of goods and services (ICMS) in the tariff of use of the distribution system (TUSD), charged in the accounts of Large consumers who acquire electricity directly from the generating companies.
Through the principle of indivisibility, the minister of the StJ case rapporteur, Gurgel de Faria, explained that it is not possible to divide the steps of the supply of energy for the purposes of the ICMS incidence. In the vote, accompanied by most of the ministers of the class, the magistrate explained that the basis of calculation of ICMS in relation to electricity includes the costs of generation, transmission and distribution.
The minister rejected the thesis that the ICMS would not be due on TUSD because this tariff would have the function of remunerating only a half activity, incapable of being a generator fact for the incidence of tax. According to the rapporteur, there is no way to separate the activity of transmission or distribution of energy from the others, since it is generated, transmitted, distributed and consumed simultaneously. "This physical reality reveals, then, that generation, transmission and distribution form the whole of the essential elements that compose the material aspect of the generating event, integrating the total price of the mercantile operation, and no one can be decoted Of its calculation base, "concluded Minister Gurgel de Faria.
Action Impetrada – The case analyzed and rejected by the majority of the first class of the Superior Court of Justice (STJ) was the manufacturer of body and trailers Randon S.A., in demand with the state of Rio Grande do Sul. The company attempted to exclude from the ICMS calculation base the amount paid for TUSD. The company maintained that the tax would only be due to the energy effectively consumed, excluding the distribution charges. For Randon, if there is no transfer of good in the payment of TUSD, there is no generator fact that justifies the incidence of ICMS.
Financial impact – Another argument considered by the ministers of the first class of the STJ was the financial impact that the exclusion of TUSD from the ICMS calculation base could have for the States. In his vote, Minister Gurgel de Faria mentioned, as an example, that the amount paid for the use of the distribution system in the STJ's energy account is approximately 30% of the total invoice. According to the state of Rio Grande do Sul, the exclusion of ICMS would generate a loss of more than R $14 billion in revenue per year, and it would be unfeasible to create a benefit for large consumers to the detriment of the simple consumer who already pays the tribute.
What is TUSD? – The distribution system usage rate (TUSD) is a charge paid by large energy consumers. It is not due to the traditional consumer who acquires energy for his residence or trade and pays a common account. Because of the great need, factories and other large-scale consumers can acquire energy directly from generators, but pay a charge for using the common distribution network.
Traditional model – the Minister of the STJ also recalled that the incidence of ICMS over the entire energy supply process is the rule for the simple consumer. The law 9.074/95 allowed the direct purchase by the large consumers, but, according to the minister, did not create exception to the rule, it is not possible to exclude steps from the power generation system for tax purposes. "The circumstance of the ' free consumer ' having to conclude a contract with a generation company, in relation to ' energy tariff ', and another with transmission/distribution company, in relation to ' wire fare ', so only externalizes the breakdown of the overall price of Supply, not denaturating the operative fact of the operation, "argued Gurgel de Faria.
Another argument considered by the ministers was the financial impact that the exclusion of TUSD from the ICMS calculation base could have for the States. In his vote, Minister Gurgel de Faria mentioned, as an example, that the amount paid for the use of the distribution system in the STJ's energy account is approximately 30% of the total invoice.
According to the state of Rio Grande do Sul, the exclusion of ICMS would generate a loss of more than R $14 billion in revenue per year, and it would be unfeasible to create a benefit for large consumers to the detriment of the simple consumer who already pays the tribute.