ICMS energia elétrica: a ilegitimidade da incidência da TUST e da TUSD na base da cálculo do ICMS energia elétrica

Abstract

The following research aims to analyze the ICMS characteristics, emphasizing the specific cases of its incidence on the consumption of electricity, exposing the, so called Tariffs of the Use of the Transmission and Distribution System (TUST and TUSD) and if these tariffs should – or not – be charged on the calculation base of the mentioned tax. Favorable and unfavorable jurisprudential arguments about the subject are used, aiming to find out if there is, indeed, irregularities in taxation of the ICMS in the electricity bill in Brazil, due to the incidence of these tariffs on the tax calculation. The method of Dialect approach was adopted and bibliographic research as procedure method. The data analysis will be Qualitative. Through jurisprudential analysis, it is verified that the ICMS time aspect concretizes the generator fact on the real plan only when the electricity is effectively consumed by the taxpayer, and the tariffs in analysis have a compensatory function, intending to fund previous services of the ICMS generator concretization. Thus, by the illegitimacy of the inclusion – and further charge – of the Tariffs of the Use of the Transmission and Distribution System, reason for which it should not be in the calculation base of the ICMS.