The Federal Supreme Court validates the transfer to consumers and sets a 10-year statute of limitations for requests for ICMS refunds on energy bills

O STF determinou que valores de ICMS cobrados indevidamente nas contas de energia, e percebidos em restituição pelas distribuidoras, sejam devolvidos aos consumidores, com prazo de até 10 anos para contestar irregularidades.

The Federal Supreme Court upheld the constitutionality of Law No. 14,385/2022, which requires energy distributors to pass on to consumers the amounts refunded for ICMS (state value-added tax) unduly included in the PIS/Cofins (federal social contribution) calculation basis, taxes unduly incorporated into electricity tariffs. In practice, the Court recognized ANEEL's authority to implement the mechanism for passing on the amounts to consumers and set a ten-year statute of limitations for filing refund claims.

Context

The STF reaffirmed the understanding established in Theme 69 of General Repercussion, according to which ICMS cannot be included in the PIS and Cofins calculation basis. From then on, energy distributors began to obtain substantial tax refunds. However, controversy arose as to whether these amounts should be returned to consumers, who were effectively responsible for paying the increased rates.

Law 14,385/22 sought to provide legal certainty for this transfer, entrusting ANEEL with regulating the compensation procedures.

Main conclusions of the decision

• Validity of Law 14,385/22: the STF ensured that the rule, which guides the refund of amounts resulting from the exclusion of ICMS from the PIS/Cofins calculation basis, is compatible with the Constitution. STF News

• Aneel as transfer operator: the regulatory agency was confirmed as the entity responsible for establishing the procedure by which distributors will transfer the amounts received to consumers. ANEEL has already published rules indicating that the transfer will, as a rule, take the form of a discount on tariffs. Brazil Services and Information

• Statute of limitations: the STF set a 10-year period for consumers to claim a refund, with the initial milestone counted from the effective refund to distributors or the final approval of the tax compensation.

• Net transfer: the Court admitted that, in the transfer, taxes levied on the refund and fees actually incurred by distributors in recovering the credit may be deducted, interpreting the transfer as net.

Who, in fact, needs to “take action”?

• As expected: it is not necessary for the majority of consumers to seek reimbursement in court. The purpose of the law and regulation is for the transfer to occur administratively and automatically, via tariff procedures.

• When to act: if there is persistent omission, miscalculation, lack of transparency, or non-compliance on the part of the distributor, consumers (or collective entities) may file a complaint with ANEEL and, if necessary, seek judicial protection. In these cases, the ten-year period set by the STF applies.

Practical recommendations

• Monitor invoices: check old and current invoices; keep records and statements showing the impact of ICMS on TUST (Transmission System Usage Tariff)/TUSD (Distribution System Usage Tariff) and other items.

• Request statements: when there is a transfer, request a detailed calculation from the distributor (gross amounts, deductions, applicable taxes, fees).

• Administrative route: file a complaint with the distributor and, if necessary, register a complaint with ANEEL (procedure provided for by regulation).

• Legal action: if the transfer does not occur or is insufficient, evaluate individual or collective action within 10 years, taking as a benchmark the date of the effective refund/approval as set by the STF.