Aline Augusta de Menezes
Lawyer at Marcos Martins Advogados
The definition of the timeframe in which the so-called DIFAL (Differential Rate) of ICMS on sales to final consumers in another state would be charged remains uncertain.
In 2021, the STF ruled that the DIFAL on sales to final consumers, established by Constitutional Amendment 87/2015, could not be levied on taxpayers without the publication of a national Complementary Law regulating the matter.
At the end of the judgment, the Justices decided that the declaration of unconstitutionality of DIFAL should only take effect from January 2022, giving the National Congress time to issue the Complementary Law regulating the charge.
Complementary Law No. 190/2022, issued to regulate the collection of DIFAL, ended up being approved late and was only published on May 5 of that year. From then on, there was enormous legal uncertainty about the collection because, although the Complementary Law itself expressly provided that the constitutional principles of nonagesimal and annual anteriority should be respected, which in theory would allow collection only in 2023, several states began demanding DIFAL as early as 2022.
The issue has reached the Supreme Court and is currently being heard in the Court’s Virtual Plenary (ADI 7066) to finally decide whether these charges should have started in 2022, with the publication of LC 190/2022, or only in 2023, as the taxpaying companies argue. The judgment, which was due to be finalized last Friday, the 11th, was once again suspended due to Justice Gilmar Mendes’ request for a rehearing.
The prevailing view so far, by a score of five to two, is that such charges should be levied in 2023, observing the annual and nonagesimal precedence laid down in our Federal Constitution.
If this decision is upheld in favor of taxpayers, there will be relief especially for retail companies that have large online sales movements between states, and which, faced with the uncertainty of these charges, ended up not paying them.
The expectation is that after Justice Gilmar Mendes’ request for a rehearing, he and Justices Roberto Barroso, Luiz Fux and Nunes Marques will be able to decide their votes so that collections only begin in 2023, with taxpayers who collected the rate differential in 2022 being able to analyze with their legal advisors the possibility of refunding the amounts paid.
