A incidência do ICMS sobre as tarifas de uso de sistemas de distribuição (TUSD) e de transmissão (TUST)

Abstract

The purpose of this article is to analyze the taxation by the tax on transactions related to the circulation of goods and on the provision of interstate and intercity transport services and of communication (ICMS) in the tariffs related to the use of the distribution (TUST) and transmission (TUST) systems of electrical energy. The issue is controversial and has favorable and unfavorable decisions regarding the tax incidence within the scope of the STJ, where it awaits judgment with No. 986. The approach starts from the analysis of the electric energy cycle, from its generation to the supply to the consumer, evaluating the role of each of the agents that integrate it, in line with the hypothesis of ICMS tax incidence. Thus, it was demonstrated that the taxation of the tax does not reach the portion corresponding to the availability of physical structures, in the event that its contracting is carried out separately from the acquisition of electricity, itself. Such considerations lead to the conclusion that both the TUSD and the TUST should not be part of the ICMS calculation basis, except in the event that its contracting is carried out in an inseparable manner from electricity.