The ministers of the Federal Supreme Court (STF) formed a majority to declare the unconstitutionality of laws from the states of Goi\u00e1s, Minas Gerais, Par\u00e1, Rond\u00f4nia and Tocantins that instituted an ICMS rate on electricity and telecommunications above the rate practiced on operations in general. The score in ADIs 7122, 7116, 7111, 7119 and 7113 was, until the evening of this Friday (26\/8), at nine to zero to overturn the state laws.<\/p>\n\n\n\n
The ministers modulated the decision so that it will take effect from 2024, except for lawsuits filed up to February 5, 2021. This means that anyone who went to court before that date will be able to request reimbursement of amounts paid unduly in the five years prior to filing the lawsuit, the prescriptive period for collecting the tax credit.<\/p>\n\n\n\n
The majority of the justices followed the vote of the rapporteur, Edson Fachin, in the sense of deeming the actions filed by the Attorney General's Office (PGR) admissible. Fachin emphasized that the limitation of the ICMS on these services seeks to comply with the principle of selectivity. According to this principle, provided for in article 155, paragraph 2, item III, of the Constitution, a federated entity can differentiate the rate for a product according to its essentiality.<\/p>\n\n\n\n
\u201cIn this line of understanding, in compliance with the criterion of essentiality, the recent jurisprudence of this Supreme Court has established that the Member State may not establish ICMS rates on electricity transactions and communication services that are higher than the rate for transactions in general\u201d, states the minister.<\/p>\n\n\n\n
Fachin applied the understanding established by the STF in the judgment of RE 714139 (Topic 745 of general repercussion), through which the STF ruled unconstitutional the institution of an increased ICMS rate on these services. At the time, the ministers approved the same modulation proposed now, that is, for the decision to take effect as of 2024, except for actions filed up to February 5, 2021, when the judgment on the merits of RE 714139 began.<\/p>\n\n\n\n
So far, the rapporteur has been accompanied by ministers Ricardo Lewandowski, C\u00e1rmen L\u00facia, Dias Toffoli, Rosa Weber, Luiz Fux, Alexandre de Moraes, Kassio Nunes Marques and Lu\u00eds Roberto Barroso.<\/p>\n\n\n\n
Ministers Gilmar Mendes and Andr\u00e9 Mendon\u00e7a are yet to vote. The deadline for submitting votes is 11:59 p.m. this Friday (August 26). Until then, any minister may request a review or a highlight. In the latter case, the trial would be taken to the physical plenary, and the vote count would restart.<\/p>\n\n\n\n
Judgment will determine who will be entitled to restitution<\/p>\n\n\n\n
The five lawsuits whose trial ends this Friday make up a package of 26 ADIs filed by the PGR questioning state laws on the subject. Within this same package, in May, the STF prohibited an increased ICMS rate on energy and telecommunications in Santa Catarina and the Federal District, in the trial of ADI 7117 and ADI 7123, respectively.<\/p>\n\n\n\n
Although the STF is judging the cases one by one, in practice, all states and the Federal District have already spontaneously reduced the rates on these services. The reduction occurred in compliance with Complementary Law 194\/22. Published on June 23, 2022, this law defined fuels, natural gas, electricity, communications and public transportation as essential. With this, the law limited the ICMS on these goods and services to the rate practiced on operations in general in the federative entities.<\/p>\n\n\n\n
Although the states and the Federal District have already reduced the rates, the judgment remains relevant to define who will be entitled to the refund of amounts paid unduly, as the STF did when judging RE 714139.<\/p>\n\n\n\n