Operações de cessão de direito de energia elétrica no mercado de curto prazo (MCP): controvérsias sobre a incidência do ICMS

Abstract

The Tax on the Circulation of Goods and Services (ICMS) plays a crucial role in state revenue collection, naturally attracting significant attention from taxpayers and generating a high volume of legal disputes, whether in the form of tax theses or passive litigation cases. Within this context, one of the most contentious issues is whether ICMS applies to the purchase of electricity in the Short-Term Market (MCP). The debate is divided into two main perspectives. On one side, the tax authorities argue that there is an effective transfer of ownership of electricity since energy previously allocated to one taxpayer is subsequently used by another, thereby constituting a taxable event. On the other side, taxpayers contend that this operation does not entail a conventional transfer of ownership but rather a mere assignment of rights, which would not trigger the ICMS tax liability. To support this analysis, we adopt the doctrinal approach of Professor Paulo de Barros Carvalho, applying the Rule-Framework of Tax Incidence as a criterion to assess whether the taxable event occurs. Additionally, we use the prevailing stance of the higher courts as a benchmark, ultimately concluding that the acquisition of electricity in the Short-Term Market does not give rise to an ICMS taxable event.