Alana Dahrouj
Lawyer at Marcos Martins Advogados
On January 5 of this year, a Complementary Law was published regulating the ICMS Difal (Rate Differential) on interstate operations destined for final consumers, making it possible for companies to discuss in court the collection of the tax for the year 2022.
The discussion about the collection of the Difal, which is already old, was taken to the STF, where it was recognized that it was unconstitutional to demand the Differential without prior regulation by Complementary Law.
As a result, in order for the tax to be collected, it would be necessary to issue a Complementary Law regulating the issue. However, since ICMS is subject to the principle of anteriority, when it is instituted or increased it can only be demanded in the year following the publication of the law. In other words, for DIFAL to be required in 2022, the law would have had to have been published in 2021.
However, the law published on January 5 is expected to take effect on January 1, 2022, demonstrating the states’ intention to collect DIFAL this year. A requirement that would be completely undue.
For this reason, now is the ideal time for companies to file the relevant lawsuit in order to obtain a preventive court order to prevent the collection of Difal for the 2022 financial year.
The law firm Marcos Martins Advogados puts its tax team at the disposal of any interested parties to answer any questions on the subject.
