The First Section of the Superior Court of Justice (STJ), in the records of EREsp 1163020, 1692023, 1699851, 1734902, 1734946, under the scope of repetitive special appeals (Theme 986), decided that the Fees for the Use of the Distribution System (TUSD) and Transmission (TUST) should be considered in the base of calculation for the Tax on Circulation of Goods and Services (ICMS) on electricity. This decision directly affects both free and captive consumers, determining that these charges, when detailed on energy bills, constitute part of the taxable value for ICMS.
During the trial, Justice Herman Benjamin highlighted a change in the STJ’s perspective starting in 2017, when questions arose whether TUSD and TUST fees should compose the base for taxation. According to Benjamin, separating the activity of transmission or distribution of energy from the sales operation itself is unfeasible, given the simultaneous nature of generation, transmission, distribution, and consumption of electric energy.
It’s important to note that the First Section chose to modulate the effects of this decision, ensuring that until the publication date of the judgment of REsp 1.163.020 (March 27, 2017), preliminary rulings favorable to consumers are preserved, maintaining the exclusion of TUSD and TUST from the ICMS calculation base. From then on, the inclusion of these fees becomes mandatory, directly reflecting on the tax burden on electricity consumption.
Thus, taxpayers without an ongoing judicial demand, who have not obtained emergency relief or evidence, or who, having obtained it, find it no longer active due to revocation or alteration, cannot exclude these values from the ICMS calculation base. For cases with final decisions (res judicata), the Section determined that they must be examined individually, respecting the appropriate judicial channels.
The precedent established now serves as a guide for resolving similar disputes nationwide, unlocking a series of processes that were awaiting this definition. The decision reverses a long trajectory of jurisprudence that excluded TUSD and TUST from the ICMS calculation base, under the argument that the tax event would only occur with the actual consumption of energy.
There is still anticipation regarding the judgment by the STF, which may redefine the current tax scenario. If the STF validates the exclusion of fees from the ICMS calculation base, there will be significant changes in tax practice. On the other hand, maintaining the charge as defined by the STJ will reinforce the current collection structure, keeping the modulation of effects already determined.