Brazil: ICMS DIFAL – Unconstitutionality in 2022

published on 14 January 2022 | reading time approx. 1 minute

In 2021, the Supreme Court ruled unconstitutional the collection of ICMS from the differential rate (DIFAL) regulated by ICMS Agreement 93/2015. The rate difference is collected in interstate ICMS operations, due to the difference in rates between the sending and receiving State in operations that target goods and services to non-contributing final consumers.

The Court's argument for declaring unconstitutionality is that the matter must be governed by a Complementary Law, and the agreement does not have competence on the subject.

In modulating the effects of the decision (restriction of the temporal effectiveness of decisions), it was defined that the unconstitutionality of the collection would take effect from 2022, if there was no publication of the complementary law in 2021.

As a result of the decision, the States, through Project Law 32/2021, fought for approval to take place in 2021, however, the project was only sanctioned and published on 01/05/2022, through Complementary Law No. 190/2022. Even with the regulation of the legislation, controversies arose because, according to the principle of anteriority (Federal Constitution art. 150, item III, subparagraph b), the collection of DIFAL can only be carried out from 2023.

The States, however, defend the thesis that Complementary Law 190 cannot be affected by the principle of precedence because there was no increase in the tax, but only regulation through a complementary law. The taxpayers, in turn, argue that, given the STF's judgment on the unconstitutionality of DIFAL according to ICMS Agreement 93/2015, the tax was not previously due, and therefore, there is a new tax from Complementary Law 190/2022.

The legal provision currently indicates that States after 90 days (principle of the novena) will be able to demand the payment of DIFAL.

Therefore, in view of the facts described above, we consider that taxpayers are subject to a situation of extreme legal uncertainty. In this way, our recommendation is to seek a judicial measure that guarantees legal certainty so that there are no surprises with DIFAL collection before 2023.