The 4th Civil Court of Curitiba ruled, in a decision on the merits, that the ICMS tax rate differential (Difal) on e-commerce should only be charged next year. The ruling, which benefits Luizzi Ind\u00fastria e Com\u00e9rcio de Sof\u00e1s, is the first such ruling to date.<\/p>\n\n\n\n
Until then, according to lawyers, only preliminary injunctions had been granted and many of them were later revoked by presidents of Courts of Justice (TJs). They took into account, among other arguments, the effect on public coffers. Without this revenue, Brazilian states run the risk of losing R$15T 9.8 billion this year.<\/p>\n\n\n\n
The debate between taxpayers and state governments began at the beginning of the year, with 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.<\/p>\n\n\n\n
Therefore, taxpayers began to argue in court that Difal should only be collected from 2023 onwards. The States, in turn, decided to start collecting it \u2013 some only applied the so-called noventena (a period of 90 days from the publication of the law).<\/p>\n\n\n\n
In Curitiba, Luizzi obtained an injunction against the collection of Difal this year, which was confirmed by a ruling earlier this month. In the decision, substitute judge Eduardo Louren\u00e7o Bana understood that the State should respect the so-called annual prior notice \u2013 which determines that entities can only collect taxes in the year following the one in which the law that instituted or increased it was published.<\/p>\n\n\n\n
For him, the effect of the declaration of unconstitutionality of the rule that dealt with the differential in tax rates by the Supreme Court, in February 2021, is its withdrawal from the legal system, \u201cas if it had never existed\u201d. \u201cTherefore, constituting a new tax, the Difal requirement must comply with the provisions of article 150, paragraph III, items \u201ca\u201d, \u201cb\u201d and \u201cc\u201d, of the Federal Constitution\u201d, he says in the sentence.<\/p>\n\n\n\n
The Supreme Court's decision declared the unconstitutionality of clauses one, two, three and six of ICMS Agreement No. 93\/2015, which dealt with the difference in tax rates. \u201cDifal ceased to exist, as its requirement was legitimized by the aforementioned clauses of ICMS Agreement No. 93\/2015,\u201d the judge stated.<\/p>\n\n\n\n
The new rule required by the Supreme Court \u2013 the supplementary law \u2013, the judge recalls in the decision, was only published at the beginning of this year, which automatically postpones the collection to the following fiscal year. \u201cIt is concluded that the claimant has a clear and certain right not to be charged the Difal due to the State of Paran\u00e1 until 12\/31\/2022, so that the tax can only be demanded by the federated entity in the following financial year (2023)\u201d, he says.<\/p>\n\n\n\n
In the sentence, the judge adds that this understanding \u201cis not changed by the fact that there is a state rule enabling the collection of Difal (article 2, item VIII, of State Law No. 11580\/2006, included by Law No. 20,949\/2021).<\/p>\n\n\n\n
According to Augusto Fauvel, a partner at the Fauvel Moraes law firm, which represents the company in the lawsuit, the Federal Constitution is very clear when it comes to annual prior notice. \u201cBut we see that the budgetary issue has been a factor,\u201d he says. \u201cThere are decisions that disregard prior notice and do not apply the Constitution, for political-budgetary reasons. It is one thing to lose a well-played game, but another to lose on the green table,\u201d he says.<\/p>\n\n\n\n
The State Attorney General's Office defends the collection of Difal in this fiscal year of 2022 and is appealing all contrary decisions, which remove this requirement, according to a note sent to Valor.<\/p>\n\n\n\n
The final word on the matter, however, will be up to the Supreme Federal Court, which is analyzing four direct actions of unconstitutionality (ADIs). There was an expectation that the issue could be resolved through preliminary injunctions, but Justice Alexandre de Moraes denied all requests. He considered that the necessary requirements for granting the preliminary injunctions were not present.<\/p>\n\n\n\n