Minas Gerais is on track to collect the differential (Difal) of the ICMS rate – a tax levied on transactions in which the end consumer is in another state, such as e-commerce – this year.
The state government has already announced that the charge will be valid from April, and the 3rd Tax Court of the State, in Belo Horizonte, denied four injunctions from companies requesting that it start in 2023. These were the first requests judged in the state.
In all cases, the judge accepted the thesis of the Attorney General's Office of the State of Minas Gerais (AGE-MG), which argued that the collection this year would not be illegal or contrary to the principle of prior financial year – by which a new tax or an increase in the rate only comes into effect the following year.
AGE-MG stated that the entry into force of Complementary Law 190, at the beginning of this year, authorizes the immediate production of effects of the collection of the tax, previously provided for in a 2015 state law.
Judge Maria Luiza Santana Assunção understood that the ruling by the Federal Supreme Court (STF) that defined the need for a federal law to regulate Difal did not invalidate state laws. Local laws prior to Complementary Law 190 would be valid, but could only take effect after the publication of national legislation.
Therefore, since there was already a law on the matter in Minas Gerais, the charge, in the judge's view, can occur. Furthermore, the judge rejected the principle of prior notice in these cases, since the tax, in her opinion, is not new and has not been increased.
Taxpayers may appeal the decisions. The case numbers are 5003680-27.2022.8.13.0024, 5003987-78.2022.8.13.0024, 5005185-53.2022.8.13.0024, 5009379-96.2022.8.13.0024.
Understand disputes between companies and tax authorities
Since Complementary Law 190/2022 – which regulated the collection of the differential – was enacted in 2022, taxpayers argue that the collection would only be possible for the following year, in order to observe the principle of annual precedence. There are those who understand that the start of the collection would only be possible after 90 days from the publication of the law, as the principle of noventena would dictate.
The National Council for Tax Policy (Confaz) authorized the collection by the states this year, in Agreement 236, published on January 6. A survey by the National Committee of State Secretaries of Finance (Comsefaz) shows that the states may have losses in revenue of around R$15T 9.8 billion if the difference is not collected.
Despite the interpretation, the states have announced individually how the collection will be made, whether starting in April, in 2023 or immediately. In addition to Minas Gerais, São Paulo has also announced that the collection will begin in April. Companies have sought state courts to have the tax collected only in 2023.
The case has also reached the STF. The Brazilian Machinery Industry Association (Abimaq) is requesting the immediate suspension of the effects of the Complementary Law for the entire year of 2022 and the postponement of its validity from January 1, 2023. The rapporteur for ADI 7,066 is Minister Alexandre de Moraes.
The government of the state of Alagoas has filed a direct action of unconstitutionality to ensure the collection of the ICMS tax rate differential since the publication of the complementary law, that is, since January 4 of this year. This is ADI 7,070. The rapporteur is also Minister Alexandre de Moraes.