ICMS rates on energy and telecommunications in the State of São Paulo
Brazilian Supreme Court upholds prospective effects in ICMS rate decision on electricity and telecommunications
The Brazilian Supreme Court (STF) rejected a motion for clarification filed by the Governor of the State of São Paulo in Direct Action of Unconstitutionality (ADI) No. 7.112. The case had previously declared unconstitutional state rules that imposed ICMS rates on electricity and telecommunications services higher than the general state rate.
In its merits decision, the Court found a violation of the constitutional principle of selectivity, in line with its precedent under General Repercussion Theme 745. The Court limited (modulated) the effects of the ruling so that it would apply prospectively as from January 1, 2024, except for lawsuits filed by February 5, 2021.
In the clarification motion, the State argued that the decision failed to address the impact of Complementary Law No. 194/2022, which later capped ICMS rates on essential goods and services, including electricity and telecommunications.
Justice André Mendonça, the reporting Justice, concluded that the original decision expressly followed Theme 745, including its modulation of effects, and that the enactment of Complementary Law No. 194/2022 did not undermine the validity of the Court’s ruling. The Court held that there was no omission or contradiction, but rather mere disagreement with the outcome.
As a result, the prospective application of the decision remains in force, with effects beginning in fiscal year 2024.
Inclusion of ISS and presumed ICMS credit in PIS and Cofins
Supreme Court removes from docket cases on exclusion of ISS and ICMS presumed credits from the PIS/Cofins tax base
The Supreme Court removed from its docket two highly anticipated cases concerning:
(i) the exclusion of municipal service tax (ISS) from the PIS and Cofins tax base; and
(ii) the exclusion of ICMS presumed credits from the calculation base of those contributions.
On February 20, 2026, Chief Justice Edson Fachin removed the cases from the session previously scheduled for February 25, 2026.
In the ISS case, the judgment had been suspended in August 2024 following a request for review by Justice Luís Roberto Barroso. At that time, the vote stood at 5–5, with only Justice Luiz Fux remaining to vote. He had previously indicated a position favorable to taxpayers.
Regarding ICMS presumed credits, the case was removed from the virtual plenary after a majority (6–5) had formed in favor of taxpayers. As a result of the procedural shift, the case will be reheard in a physical session. In principle, only votes cast by Justices who have since retired will be preserved. The rehearing is therefore expected to begin with four votes in favor of excluding ICMS presumed credits from the PIS and Cofins tax base.
A new hearing date has not yet been scheduled.
Difal on transactions destined for non‑taxpayers
Supreme Court to review scope of modulation in ICMS “Difal” decision
The Supreme Court is set to review, in a virtual session scheduled from March 6 to March 13, an appeal filed by the State of Ceará concerning the modulation of effects in the case addressing the interstate ICMS rate differential (Difal) applicable to sales to non-taxpayer final consumers.
In its merits decision, the Court held that the Difal is subject to the 90-day constitutional waiting period (nonagesimal anteriority), allowing collection as from April 2022, and rejected the cumulative application of the annual anteriority rule, as argued by taxpayers.
The Court also modulated the effects of its decision to protect companies that had filed lawsuits by November 2023 and refrained from paying the tax in 2022.
In the pending motion for clarification, the State of Ceará argues that this protection should not extend to taxpayers who did not obtain a favorable court decision or whose preliminary injunction was conditioned on a judicial deposit. The State seeks to narrow the scope of the modulation.
The outcome may redefine the extent to which taxpayers who challenged the Difal in 2022 can benefit from the prior decision.
This material is for informational purposes only. Our Consumption Tax team is available to provide specific legal advice.
