After a meeting on Monday afternoon (12/12) with 15 governors – including some who are finishing their terms and others elected who will still take office – the president of the Federal Supreme Court (STF), Minister Rosa Weber, committed to taking the trial that discusses the start of the ICMS Difal collection to the physical plenary in February 2023. The discussion was in a virtual environment in ADIs 7.066, 7.070 and 7.078, but Rosa Weber asked for the cases to be highlighted.
During the meeting, the governors pointed out losses in the order of R$11.9 billion in revenue for the states if the understanding prevails that the ICMS Difal must respect the nonagesimal and annual priorities.
What is the ICMS Difal?
The ICMS Difal 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 Difal to the state of the end consumer – that is, the difference between the internal tax rate of the state of origin and the interstate tax rate.
The trial
The trial seeks to define whether the complementary law that regulated the charge needs to observe the nonagesimal and annual priorities to begin to produce effects. This is LC 190/22, published on January 5, 2022.
Before the strike, four ministers aligned themselves with the understanding of Minister Edson Fachin, who concluded that the law corresponds to the institution or increase of a tax and, therefore, that it must observe the two prior periods: the 90-day period and the annual period. In practice, this authorizes the collection from 2023. Fachin was accompanied by ministers Cármen Lúcia, Ricardo Lewandowski, André Mendonça and Rosa Weber.
In his vote, the rapporteur, Justice Alexandre de Moraes, concluded that LC 190/22 does not create or increase taxes and, therefore, does not need to observe the previous provisions. However, Moraes understood that the provision according to which the new definitions of taxpayer, location and time of the ICMS Difal taxable event can 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. In practice, this may validate the collection since March or April 2022. This is because there is a discussion about the day on which the portal came into effect – 12/29/21 or 1/1/22.
Justice Dias Toffoli partially disagreed with the rapporteur by recognizing the legislator's legitimacy in expressly determining compliance with the ninety-day period. If Toffoli's understanding prevails, the charge will be valid from April 5, 2022. Justice Gilmar Mendes agreed with him.