The ministers of the 1st Chamber of the Superior Court of Justice (STJ) unanimously decided that ICMS is not levied on the transfer of satellite capacity. Through this service, satellite operators grant the use of their equipment, positioned in Earth's orbit, so that telecommunications companies, such as television and mobile telephone companies, can carry data traffic to their customers.<\/p>\n\n\n\n
With the decision in REsps 1474142\/RJ and 1473550\/RJ, the panel partially denied the special appeal of the state of Rio de Janeiro and overturned a charge of R$$ 581.835 million made against the company Star One S\/A.<\/p>\n\n\n\n
The rapporteur, Minister Benedito Gon\u00e7alves, stated that satellite capacity transfer services do not constitute communication services, which would give rise to the incidence of ICMS. They actually constitute an activity that serves as a means of carrying out communication.<\/p>\n\n\n\n
The rapporteur highlighted that the STJ itself, in the judgment of Repetitive Theme 427, understood that the incidence of ICMS on services supplementary to communication services is illegitimate. In this judgment, in 2012, the court concluded that, even if they are essential to communication, these services, because they assume the character of an intermediary activity, do not effectively constitute communication services and, therefore, are not subject to the incidence of ICMS.<\/p>\n\n\n\n
\u201cThe present case also follows the line of other precedents of the STJ in the sense of non-taxation of supplementary services or support activities. The satellites made available constitute means for the provision of the communication service, escaping the hypothesis of incidence of the tax\u201d, said the rapporteur.<\/p>\n\n\n\n
Star One S\/A's lawyer, Leonardo Pietro Antonelli, highlighted that, since the first satellite was launched into Earth's orbit, back in the 1980s, no operator has collected ICMS on the transfer of capacity of these satellites.<\/p>\n\n\n\n
\u201cThis was never paid because the Brazilian regulatory body, Anatel, has always prohibited satellite operating companies from providing communications services. The taxable operation is that of the telecommunications companies that contract satellite capacity, and not the operators,\u201d said Antonelli.<\/p>\n\n\n\n
Lawyer Lu\u00eds Eduardo Shoueri, a tax law professor at the University of S\u00e3o Paulo (USP), compared satellites to transmission towers and routers. Shoueri said that it is common for people to buy internet routers, which transmit internet signals, but companies could offer them through a rental service.<\/p>\n\n\n\n
\u201cWould this company be providing a communication service? Of course not. It is a case of leasing movable property. The function is identical. The satellite captures the signal and, like a mirror, reproduces it,\u201d said Shoueri, who represented the National Union of Telephone and Mobile, Cellular and Personal Service Companies (SindiTelebrasil) \u2013 now Conexis Brasil Digital \u2013 as an amicus curiae.<\/p>\n\n\n\n
Despite denying the appeal regarding the incidence of ICMS, the ministers granted the request of the state of Rio de Janeiro for a reduction in attorney fees. The amount, previously stipulated at R$21,400,000 per case, fell to a fixed amount of R$1,500,000 per case, totaling R$1,00,000,000.<\/p>\n\n\n\n
On the other hand, the panel unanimously denied an appeal by Star One S\/A requesting an increase in these same fees.<\/p>\n\n\n\n