The Federal Supreme Court (STF) may resume on Thursday the trial of an action that discusses the undue billionaire collection of tax bills, in a decision that can reverse a process in which credits are already being paid to consumers and causing an unexpected increase in the power tariff.
The lawsuit, which could have been evaluated by the court on Wednesday, was rescheduled for this Thursday. The action deals with the full return to consumers of amounts improperly charged due to the inclusion of ICMS in the PIS/COFINS calculation basis, a decision that the Supreme Court had already taken in 2017, determining the exclusion of the state tax from that calculation.
Since 2021, when the Supreme Court has finalized the modulation of the decision on ICMS, energy consumers across the country began to compensate for these tax credits in the electricity bill. By 2024, R $ 44.5 billion were returned to consumers, and another R $ 5.8 billion should be reimbursed in tariff adjustments this year, according to data from the National Electric Energy Agency (Aneel).
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The action, which will have its trial resumed with the vote of the president of the Supreme Court, Luís Roberto Barroso, was filed by the Brazilian Association of Electricity Distributors (Abradee), which questions the constitutionality of federal law that determines the full return to consumers. Distributors argue that they should be part of the amounts, claiming that they entered the past with lawsuits on behalf of consumers to guarantee these tax credits.
Among the STF ministers, there is already a majority formed in favor of the constitutionality of the law that establishes the full transfer to consumers, with six of the 11 ministers in favor of this thesis. However, some ministers voted to set a statute of limitations. If the prescription is defined, consumers may have to return part of the credits already accounted for the electricity bill.
It is still unclear what the tariff impact would be, as calculations depend on open issues, such as the start date of the prescription counting. Embrace consumer association simulations indicate that, in scenarios with statute of limitations of 5 or 10 years, considering the milestones of 2022 or 2024, tariffs can rise up to 35% for consumers of large distributors such as Cemig and Enel São Paulo.
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To date, ministers Alexandre de Moraes (rapporteur), Cristiano Zanin, Dias Toffoli and Nunes Marques are favorable to the 10 -year prescription. Flávio Dino, who initially positioned himself against any statute of limitations, indicated that he can adhere to this current. Ministers Luiz Fux and André Mendonça defend a period of five years.
According to Bradesco BBI report, published in late May, when the Supreme Court announced the resumption of the trial, the Light Distributor would be the main beneficiary if the thesis of the statute of limitations prevails, with the potential to receive up to $ 4 billion. The bank also pointed to CPFL, Cemig, Copel, Neoenergia and Equatorial as other companies with relevant gain perspectives.
