The Supreme Federal Court (STF) will resume next Friday (31/3) the trial that seeks to define the taxpayer's right to maintain and transfer ICMS credits after the Court ruled that the tax does not apply to state transactions involving companies owned by the same owner. This is a statement of clarification in ADC 49. The appeal was included in the virtual agenda that runs from March 31 to April 12.
The case has been suspended since February 16 due to a request for review by Minister Alexandre de Moraes. The trial began in September 2021 and has already been interrupted four times. Every time it was put on the agenda, the ministers did not reach a consensus on the modulation of effects.
Before Moraes' request for review, the score was tied at 4-4. There are three votes to support the proposal by the rapporteur, Edson Fachin. The judge proposed that the decision take effect from 2023 and that the states be able to regulate the transfer of credits.
There are still three votes, including that of Moraes, who requested a review, to follow the divergence raised by Dias Toffoli, so that the decision takes effect 18 months after the date of publication of the minutes of the judgment of the embargoes. For Toffoli, the transfer of credits must be regulated by complementary law.
Eight votes are required for the modulation of effects in an ADC to be approved. However, as there are only three ministers left to vote – Rosa Weber, Gilmar Mendes and André Mendonça –, the scenario is one of uncertainty for taxpayers.
This is because, until now, although all judges have argued that there should be modulation, they have differed as to its terms. Tax experts expect a change in positions, enabling the achievement of an “average vote”, or the request for a minister to stand out, which would take the case to the physical plenary and allow the debate of the topic.