Energy Bills - According to the STJ the Rates TUST and TUSD should not be included in the VAT calculation

The price composition of energy bills includes the Rate for Usage of the Transmission System for Electrical Energy (TUST), if connected to the network of a transmission concessionaire (Furnas, Chesf, etc.) or the Rate for Usage of the Distribution System for Electrical Energy (TUSD), if connected to the network of a distribution concessionaire (Eletropaulo, CPFL, etc.). As mentioned above, those rates make up the price of electrical energy sales contracts signed in the free market, due to the transport of the electrical energy by the transmission system and by the distribution network.

However, the Superior Court of Justice (STJ) has repeatedly decided, not to include the amounts referring to the TUST and TUSD in the calculation base for ICMS, due in electrical energy transactions, because they would not constitute the triggering event for the tax, since those parts of the price are not energy sales, but only its transportation. According to the precedents, ICMS is only levied on transactions which involve the sale (consumption) of electrical energy by the end consumer.

On the other hand, the STJ also consolidated the end consumer’s standing to claim the refund of ICMS, which was unduly paid in these transactions (please note, that the end consumer is only the de facto taxpayer) because of the financial impact of the tax, which is borne by the end consumer.

Furriela Advogados – Rodrigo Lacombe