2023-12-18 14:27:08
The STF – Federal Supreme Court decided on November 29th that the LC – Complementary Law that regulated the collection of Difal/ICMS – Tax Rate Differential on the Circulation of Goods and Services did not create or increase a new tax, which is why which the annual precedence should not be applied to it.
The Difal/ICMS is the difference between the percentage of tax charged in the State of destination of the merchandise, internal rate, provided for in state law, and the percentage charged in operations involving the movement of goods between States, interstate rate, provided for in a Resolution of the Federal Senate .
“The charge is used to balance the distribution of taxes in interstate transactions, dividing the charge between the state of origin of the company or industry and the state of the consumer. It was introduced by EC – Constitutional Amendment 87/2015 and was regulated by an agreement from Confaz – National Council for Financial Policy”, explains Angel Ardanaz, lawyer at Ardanaz Law Firm and University Professor in the disciplines of Business Law and Tax Law.
The majority decision was taken in the judgment of ADIs – Direct Unconstitutionality Actions 7,066, 7,070 and 7,078, which debate the period that States must wait to charge the ICMS rate differential in interstate operations when the end consumer is not a tax payer.
ADI 7,066 was filed by Abimaq – Brazilian Association of Machinery Industry and requested the suspension of the effects of the 2022 complementary law, stating that the principles of annual and nonagesimal precedence prevent collection during this year. According to the association, the amounts should only be collected from January 1, 2023.
ADI 7,070 was filed by the state of Alagoas and requested the collection of Difal/ICMS from 2022, without observing the annual and nonagesimal precedence. Finally, ADI 7,078, from Ceará, requested the charge from January 2022, also with the argument that the ninety-simal and annual precedence do not fit in the specific case.
“We therefore have, on one side, industry and commerce associations that argued that the charge could only be required in 2023. On the opposite side, the States pointed out concern about the drop in revenue without the Difal/ICMS charge in 2022”, it says Ardanaz.
In February 2021, the STF decided that this compensation mechanism would have to be regulated through an LC. In December 2021, LC 190 was approved, but the presidential sanction only occurred on January 4, 2022, which gave rise to the discussion about the beginning of its validity.
The law that regulated Difal/ICMS, published on January 5, 2022, provided for the application of the Constitution’s rule that says that one must wait ninety days for the charge to be made, the so-called nonagesimal precedence, but said nothing about the application of the rule that requires waiting for the beginning of the following year to start charging a new tax, the so-called annual precedence.
In the analysis of the actions, the understanding of the majority of ministers prevailed, that the precedent deadlines provided for in the Constitution do not apply to the case, as the complementary law did not create or increase taxes, but only established a rule for the distribution of tax revenue. .
“However, the deadline established by law must be observed, as it seeks to guarantee greater predictability for the taxpayer”, concludes Ardanaz.
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