A (não) incidência do ICMS sobre operações com energia elétrica no âmbito da geração compartilhada: autoprodução em consórcio em geração distribuída

Abstract

This is a study on the (non-)incidence of ICMS tax on electricity generated through shared generation in consortia. The objective was to propose a comparative study, contrasting positives and negatives legal arguments primarily derived from case law of the Higher Courts, State Courts of Justice, and opinions issued by the Finance Departments. Additionally, a comprehensive review of relevant literature was conducted to ascertain the prevailing understanding and rationale on the subject. To this end, the hypothetical-deductive methodology was adopted, yielding results that lead to the conclusion that favorable decisions on the matter are based on the fact that self-production operations within consortiums in shared generation lack a commercial nature, and there is no change of ownership since consortiums do not possess legal personality, despite having a CNPJ (National Register of Legal Entities). Conversely, unfavorable decisions consider arguments related to the differentiation between the CNPJ of the consortium and consortium members, which implies a change of ownership and the circulation of goods for economic purposes. Ultimately, it is determined that the regulations established by the regulatory agency are disregarded by the states to facilitate tax collection. This situation further impacts sustainable development policies and the energy matrix adopted by the Federal Government.