STF: Toffoli releases judgment on the transfer of credits to energy consumers

Minister Dias Toffoli, of the Federal Supreme Court (STF), released the judgment that discusses whether energy distributors should return to consumers, via tariff discount, the amounts of taxes collected unduly.

Now it is up to the President of the Supreme Court, Luís Roberto Barroso, to set a date for resuming the analysis. The Court has already formed a majority of six votes to determine the transfer of credits to consumers, but the debate was suspended following a request from Toffoli, in September.

There are still disagreements about the deadline for the prescription of consumers’ right to refund the tax paid – there are three votes to define the deadline at 10 years, two votes to define the prescription at 5 years, and one arguing that there be no prescription at all.

The ministers were also open to discussing the reduction, of the value passed on to consumers, of the additional costs borne by distributors. This point will still be discussed.

“Thesis of the century”

The discussion is an outcome of the Supreme Court decision that excluded ICMS from the PIS/Cofins base – the so-called “thesis of the century”, from 2017. At the time, the Court decided that the amounts unduly collected should be returned by the Tax Authorities to the companies that filed lawsuits questioning the charge.

The center of the debate is whether the credits are held by distributors or consumers. For the ministers who have voted so far, the relationship between concessionaire and consumer is not tax and is within a specific regime. “It is a question of tariff policy, it has its own regime and it is legitimate”, stated minister Luiz Fux when voting.

The Brazilian Association of Electricity Distributors (Abradee), author of the action, contests the law that gives Aneel the authority to carry out, ex officio, the transfer of credits. For the association, this matter deals with tax law and could only be regulated by complementary law.