The 1st Panel of the Superior Court of Justice confirmed that the consumer taxpayer (de facto taxpayer) has legitimacy to challenge and request the reimbursement of the ICMS unduly paid by the taxpayer responsible for collecting the tax upon the supply of electric power (Judiciary Gazette 04.29.2013).
The matter was discussed in the Ordinary Appeal in a Writ of Mandamus (RMS) n. 29,475, filed by Construtora F. Rozental LTDA., against a decision issued by the Appellate Court of Rio de Janeiro.
The taxpayer challenges the increase of the ICMS rate (from 25% to 30%) on the supply of electric power due to the creation of an additional ICMS rate to finance the State Fund against Poverty (State Laws n. 4,056/2002 and n. 4,086/2002 and Decree n. 32,646/2003).
The judgment had begun with the vote of Reporting Justice Teori Zavascki, to whom the social reality is that the de facto taxpayer is the one to bear the economic burden, and, thus, he is legitimate to “seek relief preventively or aiming at declaring the inexistence of an obligation or at averting the tax imposition”, otherwise the judicial protection (Section , XXXV, of the Federal Constitution) would be violated.
The position taken by most of the Justices of the 1st Panel was guided by the Vote issued by Justice Mauro Campbell Marques, which, in turn, was guided by the precedent of Special Appeal n. 1,299,303.
Justice Mauro Campbell Marques understood that the legitimacy of the de facto taxpayer to challenge the constitutionality of legality of the tax credit and to request the reimbursement is not broad and is limited to electric power consumers, as determined in Special Appeal n. 1,299,303.
Therefore, the 1st Panel confirmed, by majority of votes, the position that the de facto taxpayers, when electric power consumers, are legitimate to file any lawsuit aiming at averting the imposition of ICMS on this product or requesting its reimbursement on its supply.
(Ordinary Appeal in a Writ of Mandamus n. 29,475. Available at: <https://ww2.stj.jus.br/revistaeletronica/Abre_Documento.asp?sSeq=1088741&sReg=200900861741&sData=20130429&formato=PDF>. Accessed in: April 2013).