A controvérsia acerca da legalidade da inclusão dos encargos incidentes na tarifa de energia elétria na base de cálculo do ICMS

• Autor(a) principal: Dias, Fabiano Fernandes
• Data de Publicação: 2022
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/28413
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Direito Tributário; Regra matriz de incidência; ICMS; Base de cálculo; Energia elétrica; Tarifa de Uso de Distribuição e de Transmissão; Tax Law; Incidence matrix rule; ICMS; Calculation basis; Electricity

The present work is dedicated to the study of taxation of the inclusion of charges for the use of distribution (TUSD) and transmission systems (TUST) levied on the electricity consumption tariff in the ICMS calculation basis. Produced with the tools of logical-semantic constructivism and through an evolutionary perspective in Law, through which the effectiveness of tax law is questioned in the face of the semantic change of terms, over time. Thus, through a bibliographic review, collection and processing of data from legislative databases and judicial precedents, the state of the art is described - in legal doctrine and in national judicial experience - regarding taxes, aiming to discuss the gaps the right to such taxation. However, its exaction is often based on legal precepts, which is special, due to the numerous legislative gaps existing in our legal system, such as the difficulty of interpreting the tax concepts related to this tax. Thus, charging ICMS on the electricity bill is an example in this circumstance, in which state governments include in their calculation basis the Tariff for Use of the Transmission System (TUST) and the Tariff for Use of the Distribution System (TUSD). Thus, in one way, the taxpayers claim that this inclusion is illegal and, in another way, the state tax authorities, understanding by its legality, that is, continue to tax these tariffs, creating a huge legal controversy over the legality of the use of these tariffs. As the basis for calculating ICMS, in addition to causing legal uncertainty for taxpayers. Possessing the conception of positive law as a hierarchical system, the analysis of the theme begins based on constitutional precepts to, later, enter into the study of the provisions of infra-constitutional legislation. State laws indicate that electric power generators and distributors integrate the amounts inherent to the charges in the ICMS calculation basis