The ICMS tax rate differential (DIFAL) in transactions involving goods destined for non-taxpayer end consumers located in another state may be charged regularly in 2022. This is the understanding of the rapporteur, Minister Alexandre de Moraes, of the Federal Supreme Court (STF), in a vote presented this Friday (23/9) in the trial of the three lawsuits that discuss the collection of the differential. The lawsuits are ADIs 7066, 7070 and 7078.
The DIFAL was regulated by Complementary Law 190/22, published on 01/05/22. Since then, states and taxpayers have disagreed on when its effects will begin, whether in 2022 or 2023. In his vote, Moraes concluded that LC 190/22 did not institute or increase a tax and, therefore, does not need to observe the nonagesimal and annual priorities. Therefore, the collection can be carried out as early as the 2022 fiscal year.
However, the states are analyzing whether, if the rapporteur's position prevails, the DIFAL may be charged as of March 2 or April 1, 2022. This is because, in his vote, Moraes understood that the provision according to which the new definitions of taxpayer, location and time of the DIFAL generating event may 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.
This provision raises another practical issue. 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. Therefore, some states, such as Santa Catarina, understand that the date of establishment of the portal, still in December, should be considered, meaning that Difal can be charged as of March 2, 2022 (since March 1 was not useful). Other analyses, especially from taxpayers, defend the date of April 1 for the start of the charge. The issue will probably be the subject of a statement of clarification in the STF.
Understand the case
The ICMS tax rate discussed in the lawsuits is charged on transactions involving goods destined for end consumers who are not taxpayers of the tax in another state. In this type of collection, as is the case in e-commerce, the supplier of the good or service is responsible for collecting the entire tax and passing on the ICMS tax rate to the end consumer's state – that is, the difference between the internal tax rate of the state of origin and the interstate tax rate.
The possibility of charging this differential was introduced into the Constitution by Constitutional Amendment (EC) 87/15 and later regulated by Confaz Agreement 93/15. In 2021, however, the STF declared clauses of this agreement unconstitutional and decided that, as of January 1, 2022, the issue should be regulated by means of a complementary law, which was done through LC 190/22.
The problem is that the complementary law was only published on January 5, 2022. As a result, since its publication, the debate began about the beginning of the effects of the rule, whether in 2022 or 2023, in view of the constitutional principles of nonagesimal and annual prior notice.
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.
Rapporteur's arguments
Regarding the prior notices, Moraes understood that LC 190/22 does not establish or increase taxes and, therefore, does not need to observe the nonagesimal and annual prior notices to produce effects. For Moraes, the complementary law did not change the tax burden borne by taxpayers, the incidence hypothesis or the calculation basis of the ICMS. It only changed the destination of the proceeds of the collection, in order to transfer part of the revenue to the state of destination of the goods. With this, the rapporteur dismissed the request of the Brazilian Association of Machinery and Equipment Manufacturers (Abimaq), for which the DIFAL could only be charged as of 2023.
In line with the same understanding, Moraes accepted the request of the states of Ceará 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.
For Moraes, when discussing the matter, the Chamber of Deputies and the Federal Senate started from the “mistaken” premise that charging difal on transactions involving end consumers who are not ICMS contributors would constitute an increase in tax.
Finally, in order to recognize the constitutionality of the provision that provides for a deadline for new definitions of the difal to come into force, from the moment the difal portal is made available, the rapporteur stated that, although this rule is characterized as an obstacle to the immediate start of the collection of the difal, it is the legitimate exercise of the freedom of the legislator, “who established a reasonable period of time to allow the technological adaptation of the taxpayer”.
Thus, in practice, Moraes ruled that ADI 7066, authored by Abimaq, was inadmissible; ADI 7070, from Alagoas, was partially admissible; and ADI 7078, from Ceará, was admissible.
For lawyers, Moraes' vote contradicts the understanding of the STF itself
For attorney Saul Tourinho Leal, partner at Ayres Britto, Moraes' vote contradicts the understanding of the STF in the joint trial of ADI 5469 and RE 128019, in 2021. In this trial, the Supreme Court ruled that states could not charge ICMS difal in the absence of a complementary law regulating the matter. At the 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.
In the National Congress, Tourinho Leal states, the parliamentarians concluded that the complementary law must respect the prior notice. In addition, opinions such as that of the Attorney General's Office (AGU) concluded that the principle of annual prior notice should be applied to Complementary Law 190/2022. Alternatively, by observing at least the ninetieth, in compliance with the choice made by the legislator, an option considered unconstitutional by Moraes.
“For us, there is no basis to indicate that article 3 of LC 192/22 [which defines the observance of the constitutional provision regarding prior notice] violates the Constitution. The command is clear: it defines the observance of both the 90-day and general (annual) prior notice. The legislator saw fit to protect the taxpayer. It is unusual for Moraes to understand that Congress abused its prerogative or that it cannot improve taxpayers’ rights”, states Tourinho Leal, who in ADI 7066 made an oral argument on behalf of Abimaq.
For Thiago Motta, partner at Castro Barros Advogados, Moraes’ vote is clearly contrary to the constitutional provisions that, as a guarantee for taxpayers, prevent states from demanding an increase in the ICMS in the same fiscal year in which the law was published. In the lawyer’s understanding, LC 190/22, as determined by the STF, fulfilled the role of establishing the ICMS difal. He also criticizes the fact that the rapporteur declared the unconstitutionality of precisely part of the provision that expressly defined compliance with prior notices, in this case article 3 of LC 190/22. In his view, this provision should serve to safeguard the interests of taxpayers. “A blow to the difal taxpayers and, above all, to the Constitution of the Republic”, criticizes Motta.
So far, the rapporteur has been the only one to vote. The deadline for submitting votes is 11:59 p.m. next Friday (9/30). Until then, any minister may request a review or a highlight. In the latter case, the trial will be taken to the physical plenary, and the vote count will restart.