The ministers of the Federal Supreme Court (STF) formed a score of seven to zero to validate the provision of the Kandir Law that defines that the proceeds from the collection of the ICMS tax rate differential (Difal) must be forwarded to the state of destination of the goods or the end of the provision of services. This is the seventh paragraph of article 11 of the Kandir Law (LC 87/96), as amended by LC 190/22.
In practice, most ministers understand that the current rules should be maintained, which benefits the destination states of the operations, which receive the amount collected.
The ICMS Difal in question is charged on interstate transactions and services provided to end consumers who are not taxpayers of the tax. These transactions are common, for example, in e-commerce. This is the case where the company selling the goods or services is located in one state, but the end consumer is in another.
The controversy is distinct from the one discussing the start of the ICMS Difal collection — scheduled for April 12 in the physical plenary of the STF. In this case, in ADIs 7066, 7070 and 7078, the STF analyzes whether Complementary Law 190/22, which regulated the tax, needs to observe the nonagesimal and annual priorities to begin producing effects.
Arguments
The plaintiff in the lawsuit now being tried in the virtual plenary, the government of the Federal District, argues that the proceeds from the ICMS Difal collection should remain with the state where the operations are initiated. The government argues, among other points, that the Kandir Law considers the physical circulation of goods or services as the taxable event for ICMS, whereas the correct thing to do would be to consider the legal circulation of the same as the taxable event.
The rapporteur, Minister Luís Roberto Barroso, however, voted to dismiss the requests. For the judge, “the infra-constitutional legislator only sought to better distribute the proceeds of ICMS collection, in order to mitigate the conflict between producing and consuming states, contributing to federative balance”.
Barroso has been joined so far by ministers Edson Fachin, Ricardo Lewandowski, Alexandre de Moraes, Cármen Lúcia, Dias Toffoli and Gilmar Mendes. Ministers Luiz Fux, Rosa Weber, Nunes Marques and André Mendonça are yet to vote.
The deadline for submitting votes is this Monday (6/2), but any minister may request a review or a highlight. In the latter case, the trial would be taken to the physical plenary, and the score would be reset.
The ministers formed a majority in ADI 7,158.