Minister Luiz Fux, of the STF (Federal Supreme Court), decided to suspend a change in the calculation basis of the ICMS (Tax on Circulation of Goods and Services) that is levied on electricity, approved last year by the National Congress.
The states and the Federal District questioned the change in the STF, claiming that there was a billionaire loss of revenue from regional entities with ICMS, which is a state tax.
The Conpeg (National College of Attorneys General of the States and the Federal District) estimated that the annual loss of revenue with the change exceeds R$ 33 billion.
The regional entities also questioned the fact that the Union had invaded the competence to legislate on a state tax.
In the decision, Fux agreed with the states and the DF.
“It does not seem legitimate to define the parameters for the incidence of ICMS in a norm edited by the federal Legislative, even if conveyed by means of a complementary law”, decided Fux.
“The urgency of the measure can also be extracted from the values ​​presented by the author entity that account for billionaire losses suffered by the state coffers thanks to the questioned legislative measure”, reinforced the magistrate.
The preliminary decision will have to be subsequently analyzed by the plenary of the STF.
For tax lawyer Mariana Ferreira, Fux’s decision authorizes states to include electricity distribution and transmission tariffs in the ICMS calculation base.
“In my view, this preliminary decision was taken in a totally political and extra-fiscal way, because the States would have a reduction in collection of more than R$ 15 billion with the exclusion of these ICMS tariffs”, he said.
“So it seems to be one of the thousands of decisions handed down by the STF, with an extrafiscal character, in the sense of looking much more at the economic situation of the States than at the values ​​and guarantees of the Democratic State of Law”, criticized her, who is from the Murayama & Affonso Ferreira Advogados office.
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