The State of São Paulo will charge the ICMS tax rate differential (Difal) on e-commerce starting April 1, 2022. The date is stated in the Tax Administration Coordination (CAT) Notice No. 02, published this Friday (28) in the State Official Gazette. The date on which Difal will begin to be charged in the country has been in conflict with companies and Finance Departments.
The discussion arose due to the delay in the publication, by the federal government, of the complementary law required by the Federal Supreme Court (STF) for the requirement. Approved by the National Congress on December 20, the rule (LC nº 190) was only published this month.
With the delay, taxpayers began to argue that Difal should only be valid from 2023. However, without it, the States run the risk of losing R$15T 9.8 billion in revenue.
In the statement, the State of São Paulo states that Complementary Law No. 190 provides for the disclosure by the States and the Federal District, on their own portal, of the information necessary for compliance with Difal tax obligations and the command of the production of its effects from the first business day of the third month following the availability of the portal.
The State recalls that São Paulo Law No. 17,470, which regulated the division of revenue between the State of origin and the State of destination, was published on December 14, 2021. The statement then states that the difference between the internal rates of the State of São Paulo and the interstate rate (Difal), in operations and services destined to the final consumer who is not an ICMS taxpayer located in the State, will be required as of April 1, 2022.
For tax specialists, the law should provide for 90 days from the date of complementary law no. 190, which would be April 5. According to Douglas Campanini, from Athros Auditoria e Consultoria, the State of São Paulo had initially positioned itself, through Law no. 17,470, to apply the rules from 90 days from the date of publication of this law, which would be March 14, 2022. Now, the forecast has changed.
However, according to Campanini, the 90-day period should be counted after the publication of LC 190, that is, from April 5. “It is only 5 days, but depending on the volume of transactions, this period may be questioned by taxpayers”, he states.
Tax specialist Maurício Barros, partner at Demarest Advogados, maintains the opinion that the charge could only be made from 2023 onwards. The guidance for companies has been to take the issue to court, unless the company does not have a volume of operations that justifies going to court.
The Supreme Court has already received two requests to define when states can charge the ICMS tax rate differential for e-commerce (Difal). The first was filed last week by the Brazilian Machinery and Equipment Industry Association (Abimaq). The second was proposed by the governor of the state of Alagoas. While the ministers have not yet defined the issue, companies are appealing to the Judiciary to obtain injunctions against the payment.