Alana Dahrouj
Lawyer at Marcos Martins Advogados
On November 11, the Supreme Court ruled that the ICMS rate differential – DIFAL – for companies opting for the Simples Nacional system is constitutional.
The discussion centered on the possibility of requiring DIFAL in cases where the goods purchased are not destined for the final consumer, i.e. they are not intended for use, consumption or the formation of fixed assets.
To challenge the requirement, a strong argument used by taxpayers was the violation of the constitutional principle of non-cumulativeness, an attribute of the ICMS.
However, the winning vote considered that opting for Simples Nacional is a taxpayer’s option and that, therefore, those who adhere to its system must bear the burdens and bonuses generated by the regime.
The Rapporteur’s vote also considered that it is unfeasible for the Judiciary to merge more favorable tax conditions by creating a new model without any legal support.
Marcos Martins Advogados makes its tax team available to answer any questions on the subject.
