Alagoas: telephone companies question additional ICMS charge

Telephone companies are questioning in the Federal Supreme Court (STF) the laws in force in Alagoas that establish an additional Tax on the Circulation of Goods and Services (ICMS) in order to finance funds to combat poverty. The case is repeated in Rio de Janeiro and the rapporteurs are ministers Luiz Fux and André Mendonça, respectively.

In Direct Unconstitutionality Action (ADI) 7632 and ADI 7634, the Association of Cellular Operators (Acel) and the Brazilian Association of Fixed Switched Telephone Service Concessionaires (Abrafix) claim that telecommunications services are essential and that the Federal Constitution limits the incidence of additional ICMS only to non-essential goods and services.

For entities, the state legislator cannot consider such services as superfluous under the pretext of authorizing the additional charge. Furthermore, telephone companies point out that this requirement contradicts rules that prohibit higher tax collection on operations with essential goods and services.

In the assessment of the associations, provisions of Law 6,558/2004 of the State of Alagoas, which was implemented by the Ronaldo Lessa government in 2004, establishing the State Fund for Combating and Eradicating Poverty (FECOEP) and Complementary Law 210/2023 of the State of Rio de Janeiro are unconstitutional because they go against the STF jurisprudence that the telecommunications service cannot be subject to higher ICMS taxation than operations in general, due to its essential nature.

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