[Free translation]
In view of the repeated consultations on the validity of the ICMS requirement on tariffs related to the Use of the Electric Energy Distribution System (TUSD) and the Use of the Electric Power Transmission System (TUST), we present a brief summary of the current jurisprudential understanding of school subjects.
First, it should be noted that there are two groups of consumers of electricity:
(i) captive consumer, who is the small and medium consumer who can not freely choose his electricity supplier; and,
(ii) free consumer, who is the great consumer of energy, able to choose his own supplier (hydroelectric or power generation / commercialization agents).
Regarding the position of the Judiciary on this matter, we note that the Court of Justice of the State of Rio Grande do Sul has a pacified understanding that, for the captive consumer, the ICMS calculation basis is the final price of the transaction , which includes the price of distribution, transmission and production of energy. Therefore, the Court has positioned itself as being regular / valid the inclusion of "TUST - Tariff for Use of the Transmission System" and "TUSD - Tariff for Use of the Distribution System" in the ICMS calculation base.
Regarding the free consumer, the TJRS, in the opposite direction, has several taxpayer-friendly judgments, understanding that the TUST and TUSD tariffs do not make up the ICMS calculation base.
In the Superior Instances, the High Court of Justice has long been ruling that "TUST and TUSD tariffs are not part of the ICMS calculation basis for free consumers".
However, in a recent decision issued by the 1st Panel of the STJ at the judgment of REsp 1,163,020 (DJe 03/27/2017), by a tight majority it was decided that ICMS is levied on the entire process of electricity supply, TUST and TUSD comprise the final price of the transaction and, consequently, the calculation base of the ICMS.
On the other hand, contrary to this single decision unfavorable to the free consumer, the 2 nd Panel of the STJ, at the judgment of REsp 1.649.658 / MT (DJe 05/05/17), unanimously, aiming at preserving the dominant jurisprudence of the STJ on the subject, understood that it is not advisable to take a turn in the understanding of this matter and maintained the correct positioning that for the free consumers of energy "the TUST and TUSD tariffs are not part of the calculation base of the ICMS".
In view of this scenario, we observed that, in relation to captive consumers, the Judiciary has made decisions for the taxation of the respective tariffs (TUSD and TUST). Regarding energy-free consumers, the TJRS and the 2nd Class of the STJ have issued favorable decisions in the sense that the TUST and TUSD tariffs do not form part of the ICMS calculation basis.
