Articles | Postado no dia: 11 September, 2026
2026 Outlook: States Turn Their Attention to ICMS on Electricity Transactions in CCEE’s Short-Term Market
With the Consumption Tax Reform approved under Complementary Law No. 214/2025 set to be tested in 2026, and given that future rates and average collection figures will be benchmarked against previous years’ metrics, every level of government has been increasingly focused on boosting its annual tax collection averages.
This is naturally no different for the states, which, already in 2025 and looking to increase collections in 2026, have been paying closer attention to the transactions that matter most in revenue terms: electricity transactions.
When it comes to electricity, one market that state tax authorities haven’t explored as thoroughly is the Short-Term Market run by CCEE (the Electric Energy Trading Chamber), which is likely to become a target for state tax scrutiny and disputes, making it something both taxpayers and non-taxpayers should pay closer attention to in order to avoid improper state tax charges on these transactions.
How CCEE’s Short-Term Market (MCP) works
The Short-Term Market (MCP), operated by CCEE, is a multilateral settlement environment for the differences between the electricity a consumer contracted and what it actually consumed (within the Free Energy Market, where consumers can contract their electricity directly).
At the end of each month, a consumer can end up in a creditor position (if it didn’t consume all the electricity it contracted, leaving a surplus) or a debtor position (if it consumed more than it contracted, creating a deficit to be offset). These are the two situations where CCEE steps in through the MCP, essentially redirecting surplus electricity from one consumer to another.
This isn’t an actual purchase and sale, it’s an accounting adjustment that redistributes surpluses and deficits among consumers, meaning CCEE functions as a true electricity clearinghouse, shifting supply from those with a surplus to those with a deficit, in practical terms. These differences are valued using the Settlement Price for Differences (PLD), which may include regulatory charges, but they don’t represent a new sale of electricity, since the consumers who bought the electricity already paid for it, including the ICMS due.
However, this isn’t how the states interpret the legislation they rely on to charge ICMS.
ICMS Agreement 15/2007 and the states’ interpretation
The legislation issued for this type of transaction is ICMS Agreement 15/07, which states that when a consumer is in a debtor position in the MCP (meaning it used more electricity than it contracted), it must issue an incoming invoice with ICMS highlighted.
Based on this, some state tax authorities, particularly SEFAZ/CE (Ceará’s state tax department), have been issuing assessments against consumers, including non-ICMS taxpayers, arguing that a debtor position represents a new electricity purchase transaction.
This interpretation, however, overlooks the fact that the MCP doesn’t create a new taxable event. The monthly adjustment comes from transfers of electricity between consumers, and the tax burden was already applied in the original bilateral contract. On top of that, including sector charges and financial adjustments in the tax base has improperly inflated the amount of tax owed, resulting in completely disproportionate charges.
Why the charge is legally unfounded: transfers between consumers and double taxation
The legal nature of MCP transactions has already been examined by Brazil’s Superior Court of Justice (STJ), which recognized them as transfers of rights between consumers, not a purchase and sale of electricity. This means there’s no new taxable circulation of goods, as if it were newly sold electricity.
Several state appellate courts have reaffirmed that these transactions don’t constitute a taxable event for ICMS purposes, and that trying to tax the electricity adjusted through the MCP again amounts to double taxation, violating the principle of non-cumulativeness and the tax’s own constitutional definition.
Why STJ’s Theme 986 doesn’t apply to MCP transactions
States have cited STJ’s Theme 986 to justify including charges in the ICMS tax base and to charge absurdly high amounts on MCP transactions. However, that precedent is limited to charges listed on electricity bills in actual supply transactions.
There’s no supply, invoice, or circulation of goods in the MCP. That’s why Theme 986 doesn’t apply to short-term market settlements, and even if it were meant to apply, it would require careful analysis within the precedent itself before being used this way. In fact, the STJ has understood that this type of MCP transaction is a separate matter from actual electricity consumption, and shouldn’t be treated as an ordinary electricity transaction.
Conclusion and outlook
The growing number of state tax assessments targeting the MCP reflects an attempt to expand tax collection over transactions that don’t constitute a taxable event for ICMS purposes. Current case law shows these charges are unfounded, whether because there’s no circulation of electricity, or because charges unrelated to actual consumption are being included in the calculation.
So, despite the position taken by the STJ and state appellate courts on this issue (finding that no tax is owed on these transactions), until there’s a binding precedent specifically addressing the MCP, companies that contract electricity in the Free Contracting Environment (which involves the MCP) should strengthen their internal controls, technical reviews, and defense strategies to avoid improper tax assessments.
Author: Igor Frota Moreira
