The Inclusion of TUST and TUSD in the ICMS Calculation Base and the STJ Jurisprudence

Abstract

The Superior Court of Justice (“STJ”) has major precedents for the exclusion of TUST (Tariff for Use of the Transmission System) and TUSD (Tariff for Distribution System Use) of the ICMS calculation base on electricity.
However, the judgment of Special Appeal n. 1,163,020/RS, was issued in the sense that TUST and TUSD should compose the calculation basis of ICMS on electricity.
Faced with the jurisprudential alteration on the subject, there were opposites Embargos de Divergência in the face of said decision aiming to standardize the understanding of the court.
Considering that the case has been affected for trial under the system of repetitive appeals, the Court’s conclusion at the trial will be applied to ongoing legal proceedings, which are suspended awaiting finality, including judges at first instance and the courts of second instance.
In view of such a scenario, this article seeks to demonstrate the main aspects for understanding the issue, specifically addressing the concept of the ICMS tax base, TUST/TUSD, arguments for and against its exclusion in the ICMS calculation base on electricity.