Pedro Rezek Andery Altran
Lawyer at Marcos Martins Advogados
The Federal Supreme Court has ruled that the Tax on the Circulation of Goods and Services (ICMS) should only be levied on the electricity actually consumed by the company and not on the contracted demand.
Companies that use a large amount of energy seek supplies directly from the concessionaires in order to reduce their costs.
One practice that had been adopted was for the company to pay the utility company in advance, based on the contracted demand, without considering the actual use of the electricity.
This issue generated a lot of debate in the courts for a long time, and the STJ had already ruled in favor of taxpayers; however, because the STF had not settled its position, the issue still generated some uncertainty.
Following this recent decision, it was decided that
the demand for electrical power is not, in itself, subject to ICMS taxation, since only the amounts relating to those transactions in which the consumer actually consumes electricity form part of the ICMS tax base.
The decision handed down by the STF makes it possible to recover any amounts overpaid in the last five (5) years by filing a lawsuit.
The law firm Marcos Martins Advogados makes its tax team available to answer any questions on the subject.
