A request for review by Minister Dias Toffoli, of the Federal Supreme Court (STF), suspended this Tuesday (27\/9) the trial of the actions that discuss the moment of charging the ICMS tax rate differential (Difal) in operations involving goods destined for the final consumer who is not a taxpayer of the tax located in another state.<\/p>\n\n\n\n
The trial was scheduled to end on Friday (9\/30). With the request for review, however, there is no date for ADIs 7,066, 7,070 and 7,078 to return to the agenda.<\/p>\n\n\n\n
Difal was regulated by Complementary Law 190\/22, published on January 5, 2022. Since then, states and taxpayers have disagreed on when its effects will begin, whether in 2022 or 2023. Before Toffoli's request for review, the rapporteur, Minister Alexandre de Moraes, voted so that the ICMS Difal can be charged regularly in 2022. For the minister, Complementary Law 190\/22 does not establish or increase taxes and, therefore, does not need to respect the nonagesimal and general (annual) priorities.<\/p>\n\n\n\n
Under the 90-day prior notice, states are prohibited from collecting taxes before 90 days have passed since the date of publication of the law that instituted or increased them. Under the annual prior notice, this collection cannot be carried out in the same financial year as the publication of the law that instituted or increased the taxes.<\/p>\n\n\n\n
On the other hand, Moraes understood that the provision according to which the new definitions of taxpayer, location and time of the taxable event of the ICMS Difal can take effect on the first business day of the third month following the availability of the Difal portal is constitutional. This is article 24-A, paragraph four, of the Kandir Law (LC 87\/96), included by LC 190\/2022.<\/p>\n\n\n\n
Therefore, if the rapporteur's position prevails, states will analyze whether the ICMS Difal can be charged starting in March or April. The Difal portal was established on December 29, 2021, based on Agreement 235\/21, published on the same date. The problem is that this agreement only took effect on January 1, 2022. As a result, some states, such as Santa Catarina, understand that the date the portal was established, still in December, should be considered, meaning that Difal can be charged starting on March 2, 2022 (since March 1 was not a useful date). Other analyses advocate the start date of collection of April 1.<\/p>\n\n\n\n
In his vote, Moraes also accepted the request of the states of Cear\u00e1 and Alagoas to declare the unconstitutionality of the part of article 3 of LC 190\/22 that makes express reference to article 150, paragraph III, item c, of the Constitution. This constitutional provision provides for respect for the 90-day prior notice and also defines that the provisions of item b must be observed. This, in turn, deals with the annual prior notice.<\/p>\n\n\n\n
For Saul Tourinho Leal, partner at Ayres Britto and representative of Abimaq in ADI 7,066, the suspension of the trial reaffirms the connection between the current debate and the reasons for the decision that supported the STF's decision in the joint trial of ADI 5,469 and RE 128,019, in 2021. At that time, the judges concluded that EC 87\/15, by establishing Difal, created a new legal-tax relationship and that, therefore, there should be regulation by means of a complementary law, which was done by means of LC 190\/22.<\/p>\n\n\n\n
For taxpayers, when establishing this new legal-tax relationship, LC 190\/22 should observe the nonagesimal and general priorities in the collection of ICMS Difal.<\/p>\n\n\n\n
\u201cToffoli\u2019s request for review is an opportunity to better reflect on the relevance of the legislator\u2019s will in responding to an appeal made by the Supreme Court itself. It is also an opportunity for the current decision to respect the fundamental rights of taxpayers and, at the same time, legal certainty,\u201d says Tourinho Leal.<\/p>\n\n\n\n