ICMS-Energia elétrica e a impossibilidade de tributação dos contribuintes inseridos no Sistema de Compensação de Energia Elétrica da Lei n. 14.300/2022

• Ano de defesa: 2023
• Autor(a) principal: Borges, Lucas Eduino Orione
• Orientador(a): Gama, Tácio Lacerda
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: ICMS; Geração distribuída; Isenção
• Palavras-chave em Inglês: ICMS; Distributed generation; Exemption
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/40759

This work will analyze whether the various activities related to electrical energy occurring within the scope of the Electric Energy Compensation System (SCEE) of the Legal Framework for Microgeneration and Distributed Minigeneration (Law N. 14,300/2022) are events generating the type of ICMS whose materiality reaches electrical energy circulation operations. The chosen theme is justified because, at the time of carrying out the research, the understanding created by the States and DF with the edition of CONFAZ ICMS Agreement n. 16/2015, under the validity of ANEEL Normative Resolution n. 482/2012, that the operations with electrical energy between taxpayers participating in the Compensation System and electrical energy distributors are operations involving the circulation of goods and, therefore, result in the incidence of ICMS-Electrical Energy. Thus, research turns into confirming or disconfirming this understanding. The research was divided into an introduction, conclusion and five chapters. As for these, the first is dedicated to the study of the object “electrical energy”, and aims to demonstrate that this asset has been inserted into the legal-normative plan by the national legislator. It is followed by a chapter focused on the Electricity Compensation System provided for in Law N. 14.300/2022. Afterwards, the following two chapters are dedicated to the construction of the matrix rules for the tax incidence of ICMS-Commercial Operations and ICMS-Electrical Energy which, as demonstrated, constitutes a subspecies of the first. Finally, in the final chapter, it will be demonstrated that, from a legal perspective, the premise of the States and the Federal District is not sustainable. This is because, although the electrical energy generated by consumers-generators who are members of the SCEE and loaned to distributors legally circulates among the legal assets of these subjects, this circulation, as it does not result from a commercial legal transaction, or rather, from a purchase and sale contract of electrical energy, does not qualify for the incidence of ICMS-Electrical Energy, a tax whose triggering event is the carrying out of electrical energy circulation operations. The work concludes that operations with electrical energy carried out by taxpayers included in the SCEE are a clear and evident hypothesis of non-incidence of ICMS-Electrical Energy, which makes the exemption provided for in ICMS Agreement no. 16/2015 unnecessary and innocuous, since the exemption presupposes the existence of a tax legal rule on which it influences