The 12th Chamber of Public Law of TJ/SP dismissed the resource of the farm of the state of SP against sentence that removed the inclusion of the tariffs of transmission and distribution of electricity (TUST and TUSD) of the basis of calculation of the ICMS incident on the consumption of Electric power. The action was filed by a hotel and, in the first degree, judged, with the declaration of the lack of legal-tax relationship between the hotel and the farm as to the collection of the ICMS incident on the charges of TUST and TUSD, including the conviction of the Public to refund the unduly collected and proven values with monetary update. The farm maintained that the collection is legitimate, because the ICMS focuses on the operations related to electricity, which involves generation, transmission and distribution of energy. Alternative, applied for law enforcement 11.960/09 on interest and monetary correction. Illegal collection The Judge Osvaldo de Oliveira, draftsman of the appeal, pointed out that the peaceful jurisprudence of the STJ is in order to consider illegal the collection of the ICMS on the values of transmission and distribution of energy, since the fact that the generator Tax is the output of the merchandise, that is, when the electricity is effectively consumed by the taxpayer, a circumstance that consolidates itself in the phase of energy generation, not in the distribution and transmission. And thus, being illegitimate to the exaction, "acted with the sentencing magistrate in determining the refund of the amounts unduly required in that title, observed the five-year prescription, whose evidence of payments should be submitted by Occasion of the settlement of the sentence. " Interest of Mora and monetary correction by denying the resource of the farm, the 12th Chamber of Public Law also settled that, as for the interest of Mora and monetary update, when it comes to repetition of state tribute indebt, "it is to be put hand of the same criterion Used by the tax to collect the exaction. " In this way, the Judge Osvaldo de Oliveira concluded that it is correct to update the debt by means of the Selic rate, from the transit on trial, being inapplicable the provisions of the law 11.960/09. "It should be emphasized that, for the calculation of the monetary correction, the practical table of the TJ/SP should be used from the date of the improper payment (for total replacement of the inflationary loss), until the transit on trial and, from then on, the SELIC rate should be applied ( That includes interest in monetary correction), in terms already mentioned. " Source: Apet