STF forms majority to confirm suspension of change in ICMS calculation on electricity

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The Federal Supreme Court (STF) formed a majority of votes this Thursday (2) to confirm the suspension of the change in the basis for calculating the Tax on Circulation of Goods and Services (ICMS) that is levied on electricity. Ministers analyze in the virtual plenary the individual decision of Minister Luiz Fux who suspended part of the law that classifies fuels, natural gas, electricity, communications and public transport as essential goods and services, which prevents the setting of rates above those established for other products. The law set a ceiling of 18% for the ICMS rate on these items. The text provided that some of the components of the energy tariff would not be considered in the calculation of the state tax. The STF was triggered by governors of 11 states and the Federal District. The states say that, every six months, they fail to collect approximately R$ 16 billion, which could also impact the collection of municipalities. ICMS: understand the most important tax for the coffers of the states For Fux, the federal government, by changing the tax calculation basis, may have invaded the jurisdiction of the states regarding ICMS. “The reason why the States continued to charge the tax lies in the difficulty in regulating the content of the complementary law, considering the complexity of the components of the electricity tariff. That is to say that without regulation by the Treasury Departments on how exclusions should be made, it is not possible to reduce the ICMS calculation base”, said Fux. The minister’s vote was followed by Nunes Marques, Cármen Lúcia, Alexandre de Moraes, Edson Fachin, Dias Toffoli and Gilmar Mendes. The trial is scheduled to end on Friday night (3).

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