[Free translation]
The legislation of the ICMS, with the publication of Complementary Law no. 87/96, also known as the Kandir Law, started to allow the ICMS credit on the entrance of electricity in the establishment when:
a) is consumed in the process of industrialization;
b) its consumption results in an outgoing or outgoing operation, in proportion to the total exits or benefits; and,
c) is subject to subsequent operation of electric power output.
This issue, in itself, does not present novelties that justify the elaboration of an informative, but when we realize that many industrial companies are not taking the necessary care to define how much of the Electric Energy is consumed in the industrial process (option "a" above) and the respective utilization of ICMS credit, it was decided to send this alert.
In order to define the amount of Electric Energy consumed in the industrial process, it is necessary to have independent meters of consumption (which in practice has never been seen) or obtain an award provided by an engineer that unequivocally demonstrates the amount of electricity consumed exclusively in the industrial process.
Aspects to be observed:
1) the Award must have technical benchmarks, it is not just a simple statement;
2) The Award must define the percentage of Electric Energy consumed in the industrial process, not allowing it to define how much is consumed in other areas, such as the administration and the cafeteria, and, by exclusion, the indication of the consumption in the industrial process;
3) the Award has no retroactive effect, since it defines the consumption at the time of its elaboration, and therefore does not serve to indicate the consumption incurred in previous periods;
4) The report must be remade every time there is a change in the factory, either by the change of machinery or by the quantities of hours worked;
5) The Award must be relatively current, and it is not appropriate to use the same award for a long period. It is known that there are companies that use the same award for more than 20 years;
6) each industrial establishment (parent and its subsidiaries) must have its report, and it is not permitted to use in the subsidiary, for example, the award of the matrix; and,
7) each month, the industry that is also an exporter can make use of the ICMS on the EE based on the criterion that is most beneficial to it, and may change each month between the use of the percentage ratio of exports on total outputs (item "B" above), or based on the percentage indicated in the Award (item "a" above).
Companies that do not meet these criteria may have the ICMS credit glossed and receive a fine for having taken a credit in violation of the legislation.
On the subject we recommend the reading of art. 31, I, "c", of Book I, of the RICMS / RS and Opinion no. 15.163 / 2015.
