The ministers of the Federal Supreme Court (STF) decided, by 10 votes to 0, not to acknowledge the declaratory embargoes in the Declaratory Action of Constitutionality (ADC) 49, which means that there will be no analysis of merit.
The National Union of Fuel and Lubricant Companies (Sindicom) requested that, with the decision that removed ICMS from interstate transactions between establishments of the same company, the tax authorities be prevented from charging the tax for periods prior to 2024, regardless of the existence of legal action before the judgment on the merits.
However, the understanding of the rapporteur, Justice Edson Fachin, prevailed. In his vote, the judge stated that the STF established case law to the effect that entities that participate in constitutional review proceedings as amicus curiae do not have standing to file an appeal for clarification. Justices Alexandre de Moraes, André Mendonça, Cristiano Zanin, Dias Toffoli and Cármen Lúcia agreed with the rapporteur.
In April of this year, the Supreme Court ruled on the declaration of appeal filed by the government of Rio Grande do Norte, author of ADC 49, modulating the effects of the exclusion of ICMS from January 2024, except for the administrative and judicial processes pending completion until the date of publication of the minutes of the judgment of the decision on the merits, which occurred on April 29, 2021.
Sindicom filed new appeals, arguing that there is some ambiguity in the statement regarding the situation of taxpayers who, even though they did not file a lawsuit, failed to collect ICMS after the 2021 judgment, in addition to those who filed a lawsuit in court only after the decision on the merits. According to the entity, these companies could be subject to tax assessments for periods prior to 2024.