By Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes

As widely reported, the trial of important tax theses was scheduled for October 25th by the First Section of the Superior Court of Justice (STJ), the body responsible for unifying precedents on tax issues in that Court.

Among the main judgments that were on the STJ's Agenda, we highlight the following deliberations:

– Repetitive Appeals Topic No. 986 had its trial postponed and there is still no new date for inclusion in the Court's trial agenda.

Topic No. 986 refers to the thesis of the exclusion of the Distribution System Usage Tariff (TUSD) and the Transmission System Usage Tariff (TUST) from the calculation basis of the ICMS levied on electric energy. The 1st Panel of the STJ has precedents that include the TUSD and the TUST in the calculation basis of the state tax considering that the tax is levied on the entire process of supplying electric energy. The 2nd Panel of the STJ has precedents in favor of the exclusion of tariffs from the calculation basis of the ICMS, on the grounds that the triggering event would occur at the exit of the electric energy actually consumed from the supplying establishment.

The judgment of the matter by the STJ will possibly represent the final decision on the matter, since the Supreme Federal Court recognized, in 2017, that there is no constitutional question on the matter in the judgment of Theme No. 957 of General Repercussion.

Regarding this topic, it is worth remembering that Complementary Law No. 194/2022 changed the wording of article 3, item X, of Complementary Law No. 87/1996, to determine that ICMS does not apply to transmission services and sectoral charges related to operations with electric energy. However, the Supreme Federal Court suspended the legal provision in the Precautionary Measure in Direct Action of Unconstitutionality No. 7,195 in March 2023, resuming the discussion on the topic.

– Theme 1.079 of Repetitive Appeals The trial began and the vote was cast by the Rapporteur, Minister Regina Helena Costa, who voted against the limitation on the calculation basis for third-party contributions. The trial was suspended after a request for review by Minister Mauro Campbell Marques. There is still no date for it to return to the STJ's agenda.

Topic 1,079 – Will define whether the limit of 20 minimum wages is applicable for determining the calculation basis for “parafiscal contributions collected on behalf of third parties” (FNDE, INCRA, SENAI, SESI, SENAC, SESC, SEBRAE, SEST, SENAT, SENAR, etc.); a social security matter that affects a large portion of Brazilian taxpayers, also discussed for some time in the Higher Courts, it will be up to the STJ to solidify its position on the subject.

– Repetitive Appeals Topic No. 1125 had its trial postponed and there is still no new date for inclusion in the Court's trial agenda.

Repetitive Appeal Topic No. 1125 refers to the exclusion of ICMS due in the tax substitution system (ICMS-ST) by the substituted tax from the PIS and COFINS calculation basis. The thesis arises from the judgment of Topic No. 69 of General Repercussion by the Federal Supreme Court, which recognized that ICMS does not compose the PIS and COFINS calculation basis, but without specifying whether ICMS-ST could be excluded. In the judgment of Extraordinary Appeal No. 1,258,842, the Federal Supreme Court also recognized that the subject matter of the discussion was infraconstitutional, so that the STJ will probably resolve the discussion.

Given the significant number of legal discussions currently underway on such matters, the outcome of the trials will have a significant impact on Brazilian taxpayers.

Our team will closely monitor the development of the topics and is available to provide any clarifications.