A inclusão das tarifas de TUST e TUSD na base de cálculo do ICMS energia elétrica e o julgamento do tema 986 pelo STJ

Abstract

This scientific paper analyzes the inclusion of TUST and TUSD tariffs in the ICMS Electricity calculation basis. In order to offer an answer to this legal question, the monograph initially focuses on the specificities of this natural phenomenon. To this goal, we seek to define and characterize it. In the legal aspect, it is outlined how Brazilian law has treated electricity over time. The inaugural bias is how it was framed as a property. It then focuses on the tax treatment given to it by each of the constitutional orders. Regarding the ICMS, the monograph briefly outlines its general aspects and is devoted mainly to the analysis of its incidence rule. The main focus, in the light of the principle of contributory capacity, is on the material and quantitative aspects. Afterwards, the work focuses on the specificities of ICMS-Electricity, transplanting the concepts defined for this specific incidence. Thus, based on the conclusions of the preceding chapters, the paper investigates STJ Theme 986, notably Recurso Especial No. 1.163.020 / RS. For it was in the judgment of this appeal that it inaugurated the understanding that TUST and TUSD tariffs should be included in the ICMS-Electricity calculation basis. Accordingly, the arguments on which the decision was based are examined in the light of the foregoing findings, whether or not they are in agreement with them and justifying them. Finally, the conclusion proposes to indicate which understanding, in the author's position, is in line with the legal system.