A recent decision by the STF (Supreme Federal Court) brought an important signal to consumers who produce their own electricity and, consequently, to the MMGD (micro and mini distributed generation) energy market.
On January 9, when analyzing an extraordinary appeal filed by the State of Mato Grosso, the Court's plenary recognized that the discussion of the incidence of ICMS on the TUSD (Distribution System Usage Tariff) in MMGD cases is infraconstitutional.
According to lawyer Urias Martiniano, from the UMN Advogados law firm, the STF clarified that the legal demand must be handled by the STJ (Superior Court of Justice) as it is not a constitutional matter.
“In fact, if we read the issue, although there is still some controversy, the STJ itself has already recognized that ICMS is not levied on installments that are not intended to pay for electricity, so the tax should not be levied on contracted demand and TUSD,” he explained in an interview with Canal Solar.
The legal claim was filed by a consumer benefiting from MMGD who questioned the charging of ICMS on TUSD by the State of Mato Grosso. This consumer obtained a favorable decision. At the time, the TJMT (Court of Justice of Mato Grosso) agreed that there should be no ICMS charge on TUSD.
However, in the view of the State of Mato Grosso, the Federal Constitution provides for taxation of all energy supply operations, without distinction for micro and mini generation. Therefore, the state filed an extraordinary appeal with the STF. The tendency is for the State to file a new appeal with the STJ.
“In our office’s understanding, ICMS should not be levied on the portion that is not intended to remunerate electricity, for example on TUSD and Contracted Demand”, defended the lawyer.
Martiniano recalled that, under Agreement No. 16/2015, electrical energy is exempt from ICMS charges for micro and mini generation of energy for plants of up to 1 MW, as long as they have the same ownership.
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