A inclusão da tarifa de uso do sistema de transmissão e da tarifa de uso do sistema de distribuição na base de cálculo do ICMS no consumo de energia elétrica no ambiente de contratação livre

Abstract

The purpose of this study is to analyze the possibility of including the Tariff of Use of the Transmission System (TUST) and the Tariff of Use of the Distribution System (TUSD) in the ICMS calculation basis in electric power consumption in the free hiring environment, due to the jurisprudential divergence existing in the Superior Court of Justice (STJ). Therefore, the dialectical approach method is used, which tends to verify the contradictory character of the subject, while the historical procedure method was used to analyze the evolution of the Brazilian electric energy market characteristics and the comparative procedure method to analyze the tax divergence in the STJ. The first chapter dealt with the evolution of the electricity market, as well as the ICMS incidence on electricity consumption and the characteristics of the Regulated Contracting Environment and the Free Contracting Environment. The second chapter demonstrated the evolution of the jurisprudential divergence, the analysis of the opposing position to the possibility of TUST and TUSD taxation by the STJ and the analysis of the favorable position to the possibility of TUST and TUSD taxation by the STJ. Finally, it is concluded that, due to its peculiar condition, the electric energy should not be treated as a common commodity, TUST and TUSD should be included in the ICMS calculation basis, because generation, transmission and distribution are inseparable activities in the operation of the electric power supply.