STF forms majority to prohibit differentiated ICMS on energy and telecommunication

The STF (Supreme Federal Court) formed a majority this Monday (22) to prohibit states from charging differentiated ICMS values ​​for the telecommunications and electricity sectors.

The court already has seven votes in favor of a lawsuit filed by Lojas Americanas against a 1996 law in Santa Catarina that established a 25% tax rate for these two areas, compared to the 17% levied on ICMS in general.

An appeal with recognized general repercussion is under analysis, which means that the decision will apply to all ongoing processes in the country that deal with the issue. The states calculate that the decision could lead to a loss of R$ 26.7 billion in revenue per year.

The case reached the Supreme Court in 2012 and had a trial started earlier this year, but was interrupted by a request for a view (more time to analyze the issue) by Minister Dias Toffoli.

Former minister Marco Aurélio, who retired in July this year, was the rapporteur of the case and voted to overturn the differentiated rate for telephone and energy companies. Ministers Edson Fachin, Ricardo Lewandowski, Rosa Weber, Luiz Fux, Carmen Lúcia and Toffoli accompanied the former dean of the court.

Ministers Alexandre de Moraes, Gilmar Mendes and Luís Roberto Barroso disagreed and stated that the institution of higher percentages for the energy sector is constitutional. In relation to telecommunications, however, the three agreed with the position of the others in the sense of removing the 25% rate.

So far, only Minister Kassio Nunes Marques has not spoken. The lawsuit reached the Supreme in an appeal filed by Lojas Americanas against the ICMS of Santa Catarina.

The company claims that the percentages charged for energy and telecommunications are at a level higher than the rates applied for superfluous products.

Marco Aurélio’s vote prevailed, who agreed with the company’s thesis.

“Taking into account the calibration of the rates established by the local norm, the jurisdictional reclassification of the tax imposition on electric energy and telecommunication services is necessary, making the general rate of 17% applicable,” he said.

Toffoli followed this position and stated that, in relation to the telecommunications service, the law was in harmony with the Constitution when it was approved in 1996, since at the time, goods related to the sector were directed towards people with greater purchasing power.

Now, however, the social context is different and the law must be overturned, according to the magistrate. “The legislation in question, however, did not follow this economic-social evolution, maintaining the taxation of these services by ICMS at that rate, without making any distinction. It became, over time, unconstitutional,” he said. .

The three ministers who diverged stated that charging different percentages on electricity would be constitutional because the state of Santa Catarina itself applies different rates depending on the contribution capacity. In houses that spend up to 150Kwh per month, for example, the percentage was 12%.