Through Cosit Consultation Solution No. 29/2002, the Federal Revenue Service expressed its understanding that the interstate tax rate and the tax rate differential between internal and interstate transactions are not in the nature of an incentive or fiscal or financial-fiscal benefit of the ICMS, but merely a definition of the constitutional system of taxation of said tax, not falling within the hypothesis provided for in
§ 4 of art. 30 of Law No. 12,973 of 2014.
This understanding is based on the argument that DIFAL does not imply that the taxpayer receives any tax or financial-tax incentive or benefit related to the ICMS. In other words, the Federal Tax Authorities did not accept the argument that the tax rate differential system itself, whose rates are defined by Senate Resolution No. 22/1989, represents a tax benefit or incentive.
Thus, although DIFAL was created to resolve regional imbalances, and the taxpayer structures his business precisely to be entitled to DIFAL, the Federal Revenue understands that the benefit obtained cannot be treated as a subsidy, under the terms of §4 of art. 30 of Law No. 12,973/2014.
In other words, taxpayers will only have to resort to the Judiciary.
