O TJMT (Court of Justice of Mato Grosso) granted an injunction suspending the retroactive collection of ICMS (Tax on Circulation of Goods and Services) on solar energy applied to consumers with DG (distributed generation) systems.
The measure responds to a request from ALMT (Legislative Assembly of the State of Mato Grosso), which questioned the practice adopted by Sefaz (State Finance Department) and the concessionaire Energisa-MT.
The charge was considered unconstitutional by judge Nilza Maria Pôssas de Carvalho, who accepted the Assembly's arguments that the tax violates fundamental precepts of the State Constitution.
The judge also reinforced that there is no ICMS taxable event in DG systems, since the excess energy injected into the grid represents a free loan to the concessionaire, and not a circulation of goods operation. The same argument has also been made recently accepted by state courts in other states, such as Goiás.
The decision benefits consumers who were charged the tax between September 2017 and March 2021, even after investing in self-generation systems. The action was filed on April 9 by the ALMT Board of Directors, at the request of deputy Faissal Calil (Cidadania), president of the Consumer and Taxpayer Defense Committee.
“It was a necessary decision, as several taxpayers were being affected in Mato Grosso, including with their names being included in the active debt, which makes it impossible to use tax benefits,” said the parliamentarian.
According to him, many rural producers have systems working thanks to solar energy and “by having their names ed in the active debt, they are unable to sell soybeans or obtain incentives to remain competitive in the market”, he highlighted.
For the president of ALMT, deputy Max Russi (PSB), the injunction represents an important victory for those who invested in clean energy. “The Legislative Assembly fulfilled its role of defending citizens, ensuring legal certainty and respect for constitutional principles,” he said.
The decision also ordered the suspension of all istrative and judicial proceedings related to the retroactive collection of the tax, both by Sefaz and Energisa. In addition, new assessments, notifications or charges based on the technical opinion of Sefaz (Information 131/2021) are prohibited, until the action is finally judged.
“Even if the temporal aspect is considered, the underlying issue remains relevant and has legal scope, involving, at the very least, a convenience in granting a preliminary injunction, translated by the extension of the debate, to avoid significant harm to society, the economy or public order. In short, the effects resulting from the continuation of the charge are exponentially greater than the damages of a suspension until the final judgment”, says an excerpt from the preliminary decision.
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An answer
It was not explained that there are 2 components in the (TE and TUSD) and that they are separating them and continue to charge ICMS on the TUSD, that is, charging ICMS indirectly, which they should not, as they charge a duplicate.