Despite the enactment of Complementary Law No. 194/2022, which expressly excluded from the ICMS calculation base the amounts collected under TUST and TUSD for electricity transmission and distribution services, Justice Luiz Fux granted an injunction at the request of the Federative States to suspend the application of this norm until the final judgment of ADI 7195, which is expected to be completed by March 3rd.
According to the presiding justice, the Union exceeded its legislative authority by reducing the ICMS calculation base, as it is a state tax. Therefore, only state entities could legislate on this matter, as it reduces the revenue of States and Municipalities.
It is worth noting that the issue is also being analyzed by the Superior Court of Justice under the repetitive appeals system in Special Appeals No. 1,692,023-MT, 1,699,851-TO, and in the Appeals Against Special Appeals No. 1,163,020-RS.
Therefore, until the Supreme Court’s final ruling on the matter, taxpayers are prevented from excluding TUSD and TUST values from ICMS, even if they have favorable judicial decisions as a basis.