Legitimidade ativa ad causam do contribuinte "de fato" na ação de restituição de indébito tributário: o caso dos consumidores de energia elétrica

Abstract

This monography has as objective to analyze the legitimacy by cause of the factual taxpayer on the reimbursement of undue taxes, through the study of electrical power's end user situation towards the ICMS refund. The subject matter will be studied in various attributes, e.g., the definition of factual taxpayer and legal taxpayer, direct and indirect taxation and the tax refund right, and others. During the investigation, the conditions imposed on the tax refund right by the article 166, of National Taxes Law, will be studied under the Federal Constitution, as will be doctrine and jurisprudence. In this context, through this paper, it is defended that the dominant jurisprudence, consolidated by the Superior Justice Court, violates our constitutional order. Therefore, due to the singularities of electric sector laws, the electric power end user has legitimacy by cause for undue ICMS refund, since he is not a mere factual taxpayer.