The constitutionality of registering ICMS credits on the acquisition of electric power by telecommunication companies will soon be discussed by the Federal Supreme Court.

The discussion originated with the Extraordinary Appeal filed by Brasil Telecom (currently OI) against a decision of the Court of Appeals of the State of Paraná that, in 2008, dismissed the company’s plea to register ICMS credits on electric power.

The issue was discussed by the Superior Court of Justice in 2012. At the time, the majority of Justices of the First Section of the Superior Court of Justice denied relief to Direct Appeal n. 842.270, filed by the State of Rio Grande do Sul against the same Brasil Telecom.

The STJ Justices understood that the activities performed by telecommunications companies are equivalent to industrial activities for the purposes of ICMS credits, especially because electric power is an essential input to carry out telecommunications services.

(Consultor Jurídico, Mar. 29, 2013).