The discussion on the collection of the ICMS Tax Rate Differential (DIFAL) for interstate transactions and services destined for end consumers who are not ICMS taxpayers has gained new elements that will make it possible to legally challenge the collection for the year 2022.
In February 2021, the Federal Supreme Court (STF) ruled on Topic No. 1,093 and declared the unconstitutionality of the DIFAL requirement for interstate transactions and services whose recipients were end consumers who are not ICMS taxpayers, simply because Complementary Law (LC) No. 87/1996 does not provide for the requirement of the state tax in such situations. For the same reason, the aforementioned decision ultimately removed the clauses of ICMS Agreement 93/2015 that were intended to fill the gap in LC 87/96.
Considering that the Topic was judged within the General Repercussions system, the STF modulated the effects of its decision, so that: (a) the collection of DIFAL would be maintained on operations and services carried out until 12/31/2021; and (b) as of 01/01/2022, the collection of DIFAL would depend on the publication and validity of a complementary law that authorized the levy.
However, the DIFAL issue was only regularized through Complementary Law No. 190, published on January 5, 2022. The practical effect is that, if States charge DIFAL in 2022, they will violate the constitutional principle of prior notice.
Thus, there are strong legal arguments to eliminate the requirement of DIFAL in interstate transactions and services destined for end consumers who are not ICMS taxpayers, if the difference is required in 2022, so that those who do not want to be illegally compelled to pay this additional illegal charge should seek help from the Judiciary.
