The Brazilian Supreme Federal Court (STF) has formed a majority to declare the unconstitutionality of laws from the states of Rio Grande do Sul, Cear\u00e1 and Para\u00edba that instituted an ICMS tax rate on electricity and telecommunications above that applied to general transactions. The score is eight to zero to overturn the state laws. The trial is in ADIs 7132, 7124 and 7114.<\/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 ministers followed the vote of the rapporteur, Ricardo Lewandowski, in the sense of judging the actions filed by the Attorney General's Office (PGR) as admissible.<\/p>\n\n\n\n
The rapporteur 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
The rapporteur has been accompanied so far by ministers Gilmar Mendes, Rosa Weber, C\u00e1rmen L\u00facia, Alexandre de Moraes, Dias Toffoli, Edson Fachin and Luiz Fux.<\/p>\n\n\n\n
In the lawsuits challenging laws from the states of Cear\u00e1 and Para\u00edba, Justice Dias Toffoli presented a specific divergence. In the case of Cear\u00e1, regarding article 44, item I, item \u201ca\u201d, of Law 12.670\/1996, Toffoli considered that the unconstitutionality concerns only the expression \u201celectric energy\u201d, not affecting other goods listed in the provision, such as alcoholic beverages.<\/p>\n\n\n\n
In the case of Para\u00edba, Toffoli dismissed the alleged unconstitutionality of item "a" of section VI of article 11 of Law 6,379\/96. The provision already provides for a rate of 17% (the same applied to operations in general) for monthly consumption of electricity above the range of 30 kilowatts\/hour up to the range of 100 kilowatts\/hour.<\/p>\n\n\n\n
Ministers Lu\u00eds Roberto Barroso, Nunes Marques and Andr\u00e9 Mendon\u00e7a are yet to vote. The deadline for submitting votes is 11:59 pm this Friday (2\/9).<\/p>\n\n\n\n
The three lawsuits whose trials end this Friday make up a package of 26 ADIs filed by the PGR questioning state laws on the subject. In this same package, the STF prohibited an increased ICMS tax rate on energy and telecommunications in seven other states of the Federation: Santa Catarina, Distrito Federal, Goi\u00e1s, Minas Gerais, Par\u00e1, Rond\u00f4nia and Tocantins.<\/p>\n\n\n\n