The presidents of the Courts of Justice of the State of Ceará (ECJ) and Pernambuco (TJPE) suspended injunctions that allowed companies not to pay the ICMS tax rate differential (Difal) this year. In the same sense, the judges in charge of the state courts of Bahia and Espírito Santo had also decided. The decisions frustrate the judicial attempts of dozens of taxpayers to collect the tax only in 2023.
Difal ICMS is levied on transactions in which the end consumer is not a taxpayer and is in another state, as in the case of ecommerce. Since the beginning of the year, there has been a stalemate between companies and state treasuries over the date on which the tax can be collected – whether from the beginning of this year, from April or only in 2023.
In Ceará, Judge Maria Nailde Pinheiro Nogueira, president of the state court, suspended 12 injunctions that prevented the Finance Department from collecting Difal in 2022. All provisional decisions were from the 5th Public Finance Court of Fortaleza.
According to the president of the TJCE, the decisions have the potential to generate a multiplier effect, which is already happening. In February alone, according to the judge, 13 emergency measures were granted against the State of Ceará to avoid collecting the tax in 2022, which could result in monthly losses of up to R$50 million to the public coffers.
In Pernambuco, Judge Luiz Carlos de Barros Figueiredo suspended three injunctions against the collection of Difal in 2022, granted by the 2nd and 3rd Public Treasury Courts of Recife. He stated that the Treasury's argument is plausible, defending that state legislation on Difal ICMS is valid, and that maintaining the decisions would represent “a risk of serious harm to the state's economic order”.
The multiplier effect of these disputes to avoid charging this year in Pernambuco could reach R$1,500,000, which represents R$3,100,000 of the total ICMS collection expected in the period, according to the state government. The administration also compared the estimated loss with the extraordinary expenses due to the pandemic, in the order of R$1,600,000,000.
The suspensions were decided in February. They are processed with the numbers 0622655-06.2022.8.06.0000 (Ceara) and 0001114-23.2022.8.17.9000 (Pernambuco).
The reason for the tax imbroglio
The Difal rules were introduced by Complementary Law 190/2022. It came in response to the decision of the Supreme Federal Court (STF) who understood that this tax could only be charged after the enactment of a national law – previously, the tax was charged based on state laws and agreements.
The new legislation resolved this gap, but the fact that it was only published on January 5th of this year opened up interpretations for taxpayers that collection should only begin in 2023, to comply with the previous financial year.
The National Council for Tax Policy (Confaz) provided guidance on how states will collect the tax this year in Agreement 236, published on January 6. A survey by the National Committee of State Secretaries of Finance (Comsefaz) shows that states could lose R$15T 9.8 billion in revenue if the difference is not collected. Most states have individually announced the dates on which they will begin collecting the tax.
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 4th. This is ADI 7,070. The rapporteur is Minister Alexandre de Moraes.
THE Brazilian Machinery Industry Association (Abimaq) asks the STF for the immediate suspension of the effects of the Complementary Law for the entire year of 2022 and postponement of validity from January 1, 2023. The rapporteur for ADI 7,066 is also Minister Alexandre de Moraes.
Start of collection of Difal ICMS in Ceará and Pernambuco
The Ceará State Treasury Department plans to require Difal again in the state starting April 1st. “The principle of prior notice aims to avoid surprises for the taxpayer. However, if we are talking about the same tax burden and a tax that already exists, there is no way to talk about surprises,” said Secretary Fernanda Pacobahyba in interview with the local newspaper O Povo.
The plan is based on a provision of Complementary Law 190 (more specifically, changes present in article 24-A, § 4º of the Kandir Law). It determines that the requirement to taxpayers could only be made after the provision of an information portal about Difal. The effects would begin “on the first business day of the third month following the provision of the portal”. The website has been available since the end of December.
In late 2021, Pernambuco amended its oldest state law on Difal to comply with LC 190/2022. In addition, it established that the new legislation, Law 17.625/2021, would come into effect together with the publication of federal legislation. Therefore, the state already charges the tax.