The STJ will define whether the tariffs for the use of electric transmission and distribution systems (TUST / TUSD) compose the calculation basis for ICMS. The theme will be judged as a repetitive resource, at the request of PGE-RS. For this reason, the theme will be suspended throughout the country.

As the STF has already decided that this discussion is infra-constitutional, it will be up to the STJ to give the last word on the subject.

TUSD and TUST are paid by the consumer who acquires electricity directly from the commercialization or generation agents in the free electricity market. In the STJ, there is divergence on the subject, since the 2nd Class understands that the tariff remunerates the exercise of an activity of means of transportation of the electric energy that escapes of the field of the incidence of the tribute; however, the 1st Panel understands that it would not be possible to divide the stages of the energy supply for purposes of incidence of ICMS.

Electrical energy was considered as merchandise for purposes of ICMS taxation by the Federal Constitution and, pursuant to Complementary Law No. 87/96, the incidence occurs on the actual transfer of ownership with the respective final delivery to its addressee. However, the extraneous business and the costs related to the supply of electric energy cannot form the basis of calculation of the tax because they do not integrate the concept of merchandise and cannot be equated. The transmission and distribution of energy are steps in the supply chain of the merchandise which is the electrical energy itself (and with it they are not confused). Although it is understood that they are ancillary services and essential to the supply of merchandise, it is not a service that characterizes the taxable event of the state for absolute lack of legal forecast, reason why we understand that the chance of success of a lawsuit discussing the subject is likely.


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