Still without a conclusion in the Federal Supreme Court (STF), the dispute over the start of the collection of the differential rate (Difal) of ICMS \u2013 a tax for transactions in which the consumer is in another state, such as e-commerce \u2013 is advancing in the state courts. Now, with sentences that postpone the collection.<\/p>\n\n\n\n
Until recently, most decisions were provisional in nature and several of them had been suspended by the presidents of the courts.<\/p>\n\n\n\n
Last week, Judge Carmen Teijeiro e Oliveira, of the 5th Public Finance Court of S\u00e3o Paulo, ruled that the state of S\u00e3o Paulo should not require the collection of Difal from a wine distributor in 2022. Previously, the request for an injunction had been rejected. The judge took into account the constitutional principle of prior notice, according to which a new tax or tax increase can only come into effect the following year.<\/p>\n\n\n\n
The Treasury argued that the charge, which began in S\u00e3o Paulo in April, complied with the principle, since the state law on the subject had been published in December 2021. The judge assessed the understanding as \u201ccontradictory\u201d as it was based on a local rule published before the general legislation and that its application would be \u201cweakening legal certainty by enabling surprise taxation of taxpayers in the same financial year\u201d.<\/p>\n\n\n\n
Thus, the Esp\u00edrito Santo distributor Onivino, represented by Chalfin Gloldberg & Vainboim, obtained the benefit for sales to consumers in S\u00e3o Paulo.<\/p>\n\n\n\n
Since the beginning of the year, there has been a debate about when the ICMS Difal tax should start to be collected \u2013 whether from January, April or only in 2023. This is an issue that divides taxpayers and states in court. The controversy is based mainly on the delay in the presidential sanction of the complementary law on the subject, which left room for the interpretation that it would be necessary to wait another year for the states to start collecting.<\/p>\n\n\n\n
The action is being processed under number 1003364-32.2022.8.26.0053.<\/p>\n\n\n\n
Understand the ICMS Difal dispute<\/p>\n\n\n\n
The Difal rules were introduced by Complementary Law 190\/2022. It came in response to the decision of the Federal Supreme Court (STF) which understood that this tax could only be charged after the enactment of a national law \u2013 previously, the collection of the tax was based on state laws and agreements.<\/p>\n\n\n\n
The new legislation resolved this gap, but the fact that it was only published on January 5th of this year left taxpayers with the possibility that collection should only begin in 2023, in order to comply with the previous fiscal year. The states, however, say that the rule does not apply, as it would not be a new tax or rate increase.<\/p>\n\n\n\n
A survey by the National Committee of State Secretaries of Finance (Comsefaz) shows that states could lose revenue in the order of R$15T 9.8 billion if the difference is not collected. State governments have individually announced the dates on which they will begin collecting the tax.<\/p>\n\n\n\n
At the end of January, the government of the state of Alagoas filed a direct action of unconstitutionality to guarantee the collection of the ICMS tax rate differential since the publication of Complementary Law 190, on January 5. This is ADI 7,070. The rapporteur is Minister Alexandre de Moraes.<\/p>\n\n\n\n
In the lawsuit, the Attorney General's Office (AGU) argued in favor of applying the principle of annual prior notice. Therefore, the tax would be collected starting in 2023. Alternatively, if the STF understands that the law would not be subject to this principle, at least 90 days should be guaranteed after the publication of the law for the effects to begin, according to the AGU's opinion. Thus, the beginning would be on April 5.<\/p>\n\n\n\n
The government of Cear\u00e1 also proposed, in February, an ADI similar to that of Alagoas, to guarantee the collection of Difal ICMS since the publication of the complementary law. This is ADI 7.078.<\/p>\n\n\n\n
On the other hand, the Brazilian Machinery Industry Association (Abimaq) is asking the STF to immediately suspend the effects of the Complementary Law for the entire year of 2022 and postpone its validity from January 1, 2023. The rapporteur for ADI 7,066 is also Minister Alexandre de Moraes.<\/p>\n\n\n\n