Moved by the argument of loss of revenue, presidents of Courts of Justice have accepted requests from States to overturn injunctions that postpone the payment of the ICMS tax rate differential (Difal) in e-commerce. After the TJ-ES, it was the turn of the TJ-BA to suspend, at once, 24 decisions. All of them extended the collection for 90 days.<\/p>\n\n\n\n
At the Esp\u00edrito Santo Court of Justice, the president, judge Fabio Clem de Oliveira, suspended, in a single decision, 30 injunctions that postponed the collection until 2023 (case number 0001127-08.2022.8.08.0000).<\/p>\n\n\n\n
The judge accepted the request from the State Attorney General's Office (PGE). For the agency, the multiplier effect of these injunctions \u201cwould provide a scenario of loss of control in revenue given the harmful potential of the decision in question\u201d. In 2020, according to the agency, the State collected around R$15T 25 million with ICMS-Difal.<\/p>\n\n\n\n
In Bahia, the decision was made by Judge Nilson Soares Castelo Branco, president of the Court. He understood that maintaining these injunctions could bring about the risk of reverse damage to the state's finances and public health.<\/p>\n\n\n\n
The request for suspension of the injunctions was made by the State of Bahia, which stated that there was a significant loss to the public coffers, of around R$150 million per month, which could even compromise the provision of essential public services.<\/p>\n\n\n\n
The state government also claimed, in the request, that it suffered major financial losses due to the worsening of the COVID-19 pandemic (case no. 8005145-17.2022.8.05.0000). In other states, such as S\u00e3o Paulo, Acre, Paran\u00e1 and Roraima, and in the Federal District, there are still current decisions favorable to taxpayers.<\/p>\n\n\n\n
The discussion arose due to the delay in the publication by the federal government of the complementary law required by the Federal Supreme Court (STF) for the collection. Approved by the National Congress on December 20, the rule, number 190, was only published in January. With the delay, taxpayers began to argue that Difal should only be valid from 2023.<\/p>\n\n\n\n
The states, however, are in favor of immediate collection. Without the tax rate differential, they run the risk of losing R$15T 9.8 billion in revenue. For them, since this is not a tax increase or a new tax, it would not be necessary to comply with either the ninety-day period (90 days to start collecting taxes from the publication of the law) or the so-called annual advance period (one-year period). The issue has already been taken to the Supreme Federal Court.<\/p>\n\n\n\n
For Eduardo Correa da Silva, from Correa Porto Advogados, as in the case of the suspension of the injunction in Esp\u00edrito Santo, the main basis of this case in Bahia is the issue of significant loss of revenue. \u201cThis argument is of an economic nature, which cannot override the argument of a legal nature, which the judge would need to consider,\u201d he says.<\/p>\n\n\n\n
Lawyer Maur\u00edcio Faro, partner at BMA Advogados, agrees. Once again, he says, the lack of legal discussion on the constitutionality or otherwise of applying the principle of 90-day prior notice in the case of Bahia is striking. He adds that it was based mainly on unilateral allegations by the State, which speak of expected revenue and damage to the public treasury. \u201cWhat was supposed to be an exception [the use of an incident of suspension of an injunction] has become a rule in these tax discussions,\u201d he says.<\/p>\n\n\n\n