In a vote presented this Friday, Minister Dias Toffoli, of the Federal Supreme Court (STF), partially disagreed with the rapporteur and recognized the constitutionality of the provision that determines that the complementary law regulating the collection of the ICMS tax rate differential (Difal) respects the ninetieth day. The vote was given in ADIs 7,066, 7,070 and 7,078.
In practice, if this position prevails, the states and the Federal District will be able to charge the ICMS Difal from April 5, 2022. In addition, in the case of federative units that started charging earlier, taxpayers will be able to request the refund of amounts collected unduly. The score is 1-1 for the law to respect the noventena.
The controversy concerns Complementary Law 190/22. The law regulated the collection, by states, of Difal in transactions involving goods destined for non-taxpayer end consumers located in another state. The problem is that, as LC 190/22 was published on January 5, 2022, since then, states and taxpayers have disagreed on the start of its effects, whether in 2022 or 2023, in compliance with the principles of nonagesimal and general (annual) prior notice.
The trial had been suspended since September 27 and was resumed this Friday (11/4). In his dissenting vote, Minister Dias Toffoli understood that the complementary law does not establish or increase taxes, but merely defines general rules, and therefore, as a rule, should not observe the previous ones.
However, Toffoli considered article 3 of LC 190/22 to be constitutional. This provision makes express reference to article 150, paragraph III, item c, of the Constitution, which 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 annual prior notice.
For Toffoli, although there is an “objective doubt” about the need to also observe the annuality – which would validate the collection only from 2023 –, it is “unequivocal that the complementary legislator, since the start of the legislative process, wanted to establish, in favor of taxpayers, the minimum time period of ninety days”. For Toffoli, the legislator acted legitimately and in order to ensure “other safeguards for the taxpayer, guiding the power to tax”.
The minister also noted that some states, on their own initiative, decided to comply with the provisions of article 3 of LC 190/22, starting to charge only on April 5, 2002. Among them are Amapá, Amazonas and Minas Gerais.
Partial divergence
In September, the rapporteur, Minister Alexandre de Moraes, concluded in his vote that the ICMS Difal could be charged regularly in 2022. For the minister, LC 190/22 does not establish or increase the tax and, therefore, does not need to respect the nonagesimal and general (annual) priorities. In line with this understanding, Moraes also considered the final part of article 3 of LC 190/22, which expressly defined compliance with the noventena, to be unconstitutional.
Thus, in today's vote, Toffoli disagreed only with regard to the last point, considering the option made by the legislator to be legitimate and, therefore, constitutional, Article 3 of LC 190/22. Toffoli also agreed with the rapporteur to consider constitutional the provision according to which the new definitions of taxpayer, place and time of the Difal taxable event may take effect on the first business day of the third month following the provision of the Difal portal. This is Article 24-A, paragraph four, of the Kandir Law (LC 87/96), included by LC 190/2022.
Taxpayers defend the annual prioritization of ICMS Difal
For lawyer Saul Tourinho Leal, partner at the Ayres Britto law firm, although Toffoli's vote recognizes premises such as the legislator's desire to protect taxpayers, the correct thing to do would be to respect both the 90-day and annual prior notice.
“Minister Toffoli’s vote acknowledges the premises presented by taxpayers, but concludes in a way that is detrimental to the normative force of the Constitution itself, since he understands that, in the face of an objective hermeneutical doubt – the words are those of His Excellency –, the interpreter is responsible for the path that least protects fundamental rights. For us, it is the opposite. In these reasonable disagreements, the solution is the one that best achieves the protected fundamental good, which, in this case, is the prior exercise, not just the ninety-day period”, states Tourinho Leal, who represents Abimaq in ADI 7066.
Tax specialist Eduardo Pugliese Pinceli, partner at Schneider Pugliese, agrees that it is not possible to dissociate the noventena from the annual prior notice, and the charge should only be valid from 2023. One of the arguments is that item c, of article 150, paragraph III, of the Constitution, when dealing with the noventena, also defines that the provisions of item b must be observed. This, in turn, deals with the annual prior notice.
“I fully agree with Toffoli when he says that the supplementary legislator can choose the prior period as the deadline for the law to take effect. My only disagreement is that only the ninety-day period should not be observed,” says Pugliese.
For the attorney for the state of Ceará and president of the National Association of Attorneys for the States and the Federal District (Anape), Vicente Braga, Toffoli's vote represents, to some extent, a victory for the states, since, if this position prevails, the charge could be made in 2022, even if from April 5th.
“There is no need to talk about a new deadline for the rule to come into effect, since the tax already existed. The ICMS differential rate already existed as provided for in state or Federal District law; all that had to be obeyed was the constitutional requirement regarding the existence of a supplementary law establishing general rules. The collection starting in April represents at least a partial victory for most states,” said Braga, who made an oral argument within the scope of ADI 7,078.