A seletividade em função da essencialidade incidente nas alíquotas do ICMS da energia elétrica

Abstract

This article demonstrates the non-observance of the selective taxation of ICMS on electric energy by the States and the Federal District, despite the essential character of this input. It carries out an analysis about the selectivity and essentiality of electric energy, using post-positivism as a theoretical framework. It adopts as methodology the inductive, comparative and dialectical methods. The research results are in the sense that all states and the Federal District establish ICMS rates for electric energy at the same percentage or in a higher percentage than those attributed to products considered superfluous. Most Courts of Justice have understood, in recent years, the possibility of increasing these rates. The recent decision of the Federal Supreme Court that these rates cannot be higher than the ordinary rate, however, brings a new system for the taxation of ICMS, but does not consider electric energy as a commodity whose rate must be reduced due to its essentiality, because it allows them to be fixed on the same level as other non-essential goods and services.