The opening of disputes against the collection of the ICMS tax rate difference (Difal) in transactions where the consumer is in another state, such as e-commerce, adds another favorable decision to taxpayers. Judge Mario da Silva Nunes Neto, of the 3rd Public Finance Court of Vitória (ES), granted a preliminary injunction exempting the company from paying the tax this year and until the state of Espírito Santo regulates the tax.
A company specializing in technology for security and integrated traffic management, represented by lawyer Adler Van Grisbach Woczikosky, demanded that the noventena principle be respected, that is, that collection begin 90 days after the tax was made official with the publication of Complementary Law 190/2022, on January 5. It also requested that the prior requirement be respected, in which a new tax can only be charged in the following fiscal year, therefore in 2023.
Judge Mario da Silva Nunes Neto agreed: “Its effects cannot occur before ninety days from the publication of the law, nor in the same fiscal year as the law, that is, 2022.” Thus, he determined that the collection will not take place this year. Furthermore, in response to another request from the company, he determined that the collection cannot take place before a state law regulating the subject is enacted – in other preliminary decisions involving the same issues, this requirement had not yet appeared.
Until 2021, the company contributed to the tax, following the National Council for Tax Policy (Confaz) Agreement 93/2015. A decision by the Federal Supreme Court (STF) last February determined the need for a complementary law for collection, which left the validity of the Agreement behind.
With Complementary Law 190, approved by Congress in December, the charge could continue this year, but the sanction took a while to come out. Confaz published Resolution 236/2022, instructing the states to charge it starting this year. The understanding of the states is that this is neither a new tax nor an increase, therefore the ninety-day and prior notice do not apply. The case has also reached the STF.
The process at TJES has the number 5000602-63.2022.8.08.0024.