PGE-RJ regulates procedures for cases have become final
Leonardo Martins and Andre Araujo de Andrade
The Attorney General's Office of the State of Rio de Janeiro (PGE-RJ), through the Joint Service Order - OSC PG-02/PG-03/PG-19 01/2022, regulated the procedures necessary for the administrative settlement of the amounts involved in lawsuits made in court related to the collection of ICMS on the contracted demand for electricity not consumed, pursuant to Summary 391 of the Superior Court of Justice (STJ) and Theme 176 of the Supreme Federal Court (STF).
After intense debate and more than ten years of discussions in the higher courts, the Supreme Court pacified the matter by fixing the thesis that "the demand for electric power is not subject, by itself, to taxation via ICMS, because the calculation base of this tax only includes the amounts related to those operations in which there is effective consumption of electricity by the consumer."
To facilitate and expedite the outcome of the various lawsuits filed by Rio de Janeiro taxpayers, PGE-RJ gave them the possibility of promoting, through administrative means, the settlement of the amounts involved, for subsequent collection of judicial deposits or refund.
It is sufficient for the taxpayer to submit an administrative application to the Attorney General's Office for Appropriate Dispute Settlement and Human Rights (PG-19) – one of the subdivisions of the State Attorney's Office – with all the documentation listed in the act, such as a copy of the application, proof of distribution, copies of the invoices for the five years prior to the action, bank account statement for deposits made (if applicable), spreadsheet with amounts to be refunded, proof of petition protocol with request for suspension of demand based on the service order itself, among others.
The application will be analyzed by the Tax Attorney (PG-03), which, after verifying the documentation, will forward the request to the Office of Calculations and Accounting Expertise (ACPC) to calculate the portion that can be raised / refunded to the taxpayer.
The taxpayer will then receive a proposal for a consensual settlement on the basis of the calculations drawn up by the ACPC. If accepted, both parties shall file a petition informing about the agreement. At this time, the withdrawal of the amount calculated for the benefit of the taxpayer and the conversion into income to the state of any remaining balance will be required. In the case of a refund, the issuance of a court payment order (“precatório”) or small amount requisition (RPV) will be requested, also according to the agreed calculations.
Interested taxpayers should wait for the public call that will be made on the PGE-RJ website.
It is an innovative initiative, with the clear purpose of giving effectiveness to the decisions from the higher courts and to solve the demands with greater agility and simplification.