SEVERO, W. C. P. N.; SEVERO, Wanderson Cleyton Pereira Nunes.
Résumé:
The present study has as its subject the study the analysis of the illegality of the
incidence of the Tax on the Circulation of Goods and Services on tariffs of use
of the distribution and transmission system of electric energy. The problem that
the research seeks to analyze consists of charging the ICMS tax on the tariffs
for the use of electricity transmission and distribution systems (TUST / TUSD).
The hypothesis presented is that the main origin of this problem lies in the State
acting as an active subject of the tax relationship, which has improperly
charged, from the concessionaires of electricity supply service, the ICMS tax,
on usage charges of electricity transmission and distribution systems. The main
objective is to analyze whether the ICMS tax on the TUST / TUSD tariffs (Rates
of Use of Distribution and Transmission Systems) made by the Government of
the State of Paraíba to the electric energy concessionaires is compatible with
the ICMS - LC 87/96, in the part that describes the taxable event and the basis
of calculation of the tax. In turn, this work has specific objectives: To analyze
the doctrine and the legislation on ICMS; Check the legal nature of the TUST
and TUSD tariffs; Study, in detail, the constituent elements of ICMS. To verify
the jurisprudence of the Superior Court of Justice and Federal Supreme Court
on the collection of ICMS on TUST and TUSD ;. The methodology used in the
present research was the deductive method as a model of approach, starting
from a larger premise, passing through a smaller one, and arriving at a
particular conclusion. The method of procedure adopted was the comparative
one, in which the result of several other researches and existing literature on
the subject was compared. The type of research used was the explanatory one,
in order to identify the factors that determine or contribute to the emergence of
the problem, and the possible solutions to it. As for the technical procedure, the
research is bibliographical and documentary, with direct and indirect treatment
of the sources. Therefore, these are the central arguments of this monographic
study, structured in three chapters: The first chapter, entitled "Of the Principles
that regulate the Tax Law", where an analysis will be made about the principles
that regulate the practice of the tax jurisdiction of the State, are these : Principle
of Legality; Principle of Irretrocativity; Principle of Contributory Capability, in
addition to ICMS principles, which are: The Principle of Non-Cumulativity and
the Principle of Selectivity. In the second chapter, whose title is "ICMS:
Constituent Elements", the elements that make up the ICMS, such as the Active
Subject and the Passive Subject, the Generating Fact of this tax, tax rate,
calculation base and the ICMS Agreements . Finally, in the third chapter, titled
"TUST / TUSD: An Analysis on the Illegality of Incidence on the Tariffs", an
analysis was made of the illegality of the ICMS collection on the mentioned
rates of transmission and distribution of energy realized by the State of Paraíba,
based on the analysis of the doctrine on the subject, together with the
jurisprudence of the STF and the STJ.
