While many states have canceled the injunctions that prevented the collection of ICMS Difal this year, a wine importer and reseller managed to avoid payment in the Court of Justice of São Paulo (TJ-SP). The decision was handed down in the 4th Public Law Chamber of the São Paulo Court.
However, the State Attorney General's Office (PGE) intends to appeal this and all decisions that are unfavorable to it regarding the collection of Difal this year, the PGE informed in a note to Valor. Without this collection, the States run the risk of losing a total of R$15T 9.8 billion.
In the decision, the rapporteur of the action, judge Jayme de Oliveira, granted the preliminary injunction. He considered that the collection of Difal is not admissible in the fiscal year 2022 due to the need to respect the annual precedence in relation to the financial year (one-year term).
As the general rule is from 2022 (Complementary Law No. 190), the charge begins in 2023, according to the decision. The São Paulo law on the subject, published in 2021 (State Law No. 14,470), would only come into effect after the complementary law is published.
The company's lawyer in the action, Pedro Burdman da Fontoura, from the firm Chalfin, Goldberg & Vainboim Advogados, highlights that the decision is important for the company especially due to the weight of Difal in items such as wine, especially imported ones.
When selling to customers located outside the state of Espírito Santo, the company had to pay Difal, which corresponds to the difference between the internal tax rate of the receiving state and the interstate ICMS tax rate. According to Fontoura, in the case of imported wines, 21% of the revenue is made up of Difal from the São Paulo ICMS. In the case of national wines, the tax rate is lower, at 13%.
Context
The discussion between companies and state treasuries over Difal has been recurring since the beginning of the year. It arose with the delay in the publication, by the federal government, of the complementary law required by the Federal Supreme Court (STF) for the collection.
Approved by the National Congress on December 20, LC 190 was only published in January. Thus, taxpayers began to argue that Difal should only be valid from 2023. The States, in turn, claim that they could already charge it.