ICMS: uma abordagem jurisprudencial e doutrinária sobre a incidência do tributo sobre as tarifas de TUST e TUSD

Abstract

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.