The Twelfth Chamber of Public Law of the Court of Justice of São Paulo (TJSP), in a unanimous decision, rendered in the case records of Civil Appeal no. 0018811-29.2012.8.26.0053, recognized the non-levy of ICMS on the Lease of Electrical Energy Generators.
The trial court had found that upon the legal transfer of the contracted energy, regardless of it being consumed, there would be the occurrence of the ICMS taxable event. However, in a higher court, the judgment panel focused on the fact that the tax had been assessed on assets subject matter of the lease (Electrical ENERGY generators) and not on the electrical energy.
When concluding, the Twelfth Chamber of the TJSP affirmed that in the case of leases, there would, at most, the levy of the Service Tax (ISS). However, as the STF has already declared the expression “Lease of Assets”, provided for in DL n. 406/68, to be unconstitutional, it would also be ruling out this tax in this case. Therefore the company’s activity would not be subject either to the ICMS (since this is not the case of electrical energy trade), or to the ISS (since this is not the case of specific performance).