ICMS tax can still be charged in 2022, Alexandre de Moraes votes

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The difference in the rate (difal) of ICMS in operations involving goods intended for a non-tax-paying final consumer located in another country may be charged regularly in 2022. This is the opinion of the rapporteur, Minister Alexandre de Moraes, Federal Supreme Court (STF)), in the vote presented this Friday (23/9) in the judgment of three actions that discuss the collection of the difference. The processes are ADI 7066, 7070 and 7078.

Difal is regulated by Supplementary Law 190/22, published on 1/5/22. Since then, states and taxpayers have disagreed on the start of its effects, either in 2022 or 2023. In his vote, Moraes concluded that LC 190/22 did not introduce or increase a tax and therefore nonagesimal and annual precedents should not be respected. Therefore, the collection can be carried out already in 2022.

The states, however, are analyzing whether, if the rapporteur’s position prevails, the difference can be charged from March 2 or April 1, 2022. This is because Moraes understood with his vote that the provision according to which the new definitions are the taxpayer, the place and time of initiation difal events can take effect from the first working day to the third month after the availability of the difal portal. This is article 24-A, fourth paragraph, of the Kandir Law (LC 87/96), included in LC 190/2022.

This provision raises another practical question. The Difal portal was established on December 29, 2021 based on Agreement 235/21, published on the same date. The problem is that this agreement only entered into force on January 1, 2022. Therefore, some states, such as Santa Catarina, understand that the date of establishment of the portal, which is still in December, must be taken into account, due to which the difal can be charged as from March 2, 2022 (because March 1 was not helpful). Other analyses, especially those of taxpayers, defend the date of April 1 for the start of collection. The topic will probably be the subject of a proposal for clarification in the STF.

understand the case

The ICMS differential at issue in the lawsuits is levied on transactions involving goods destined for end consumers who do not pay tax in another state. In this type of billing, as in electronic commerce, the supplier of the good or service is responsible for collecting the entire tax and passing on the ICMS tax to the country of the final consumer – that is, the difference between the country’s internal rate of origin and the interstate rate.

The possibility of charging this difference was introduced into the Constitution by Constitutional Amendment (EC) 87/15, and later regulated by the Confaz Convention 93/15. However, in 2021, the STF declared the clauses of this contract unconstitutional and decided that from January 1, 2022, the case will be regulated by a supplementary law, which was implemented through LC 190/22.

The problem is that the supplementary law was only published on January 5, 2022. Since its release, a debate has started about the start of the norm’s effect, whether in 2022 or 2023, considering the constitutional principles of nonagesimal antecedencies. and annually.

Due to non-statutory primacy, states are prohibited from collecting taxes before 90 days have elapsed from the date of publication of the law that introduced or increased them. Due to annual precedence, this collection cannot be implemented in the same financial year as the law introducing or increasing taxes is published.

Arguments of the rapporteur

Regarding the prior notices, Moraes understood that LC 190/22 does not establish or increase the tax and therefore does not have to respect the nonagesimal and annual prior notices to take effect. For Moraes, the complementary law did not change the tax burden borne by taxpayers, the incidence hypothesis or the basis for calculating the ICMS. He just changed the destination of the revenue from the collection, in order to transfer part of the revenue to the country of destination of the goods. With this, the rapporteur rejected the request of the Brazilian Association of Machinery and Equipment Industry (Abimaq), for which the difal can be charged only from 2023.

Following the same agreement, Moraes accepted the request of the states of Ceará and Alagoas to declare unconstitutional the part of Article 3 of LC 190/22 which expressly refers to Article 150, paragraph III, subparagraph c. Constitution. This constitutional provision provides for the respect of non-precedential priority and also defines that the provisions of paragraph b. This, in turn, deals with annual precedence.

For Moraes, when debating the matter, the House of Representatives and the Federal Senate started from the “false” premise that the collection of difals in operations involving non-ICMS taxpayers would constitute a tax increase.

Finally, in order to recognize the constitutionality of the provision that foresees the deadline for the entry into force of the new definitions of difal, from the availability of the difal portal, the reporter stated that, although this rule is characterized as an obstacle to the immediate start of the collection of difal, it is a legitimate use of the legislator’s freedom, “which established a reasonable period of time to enable the taxpayer to adapt technologically”.

Thus in practice Moraes rejected ADI 7066 authored by Abimaq; partly from ADI 7070, from Alagoas; and from ADI 7078, from Ceará.

For lawyers, Moraes’ voice contradicts the STF’s own understanding

For attorney Saul Tourinho Leal, partner at Ayres Britto, Moraes’ voice contradicts the understanding of the STF in the joint ruling ADI 5469 and RE 128019 of 2021. In this ruling, the Supreme Court ruled that states cannot charge the ICMS in the absence of a complementary law which regulates that issue. At that time, the judges concluded that EC 87/15, by introducing a difal, created a new legal-tax relationship and that therefore there should be regulation by a complementary law.

In the National Congress, says Tourinho Leal, the parliamentarians concluded that the complementary law must respect the priorities. In addition, opinions such as that of the State Attorney’s Office (AGU) were concluded by applying the principle of annual priority to Supplementary Law 190/2022. Alternatively, to observe at least the novena, in accordance with the choice of the legislator, an option that Moraes considers unconstitutional.

“For us, there is no basis that indicates that Article 3. LC 192/22 [que define a observância de dispositivo constitucional referente às anterioridades] violate the Constitution. The commandment is clear: it defines the observance of both nonagesimal and general (annual) primacy. The legislator considered it necessary to protect the taxpayer. Because of this, Moraes understands that Congress has abused its prerogative or that it cannot improve the rights of taxpayers,” says Tourinho Leal, who gave oral arguments on behalf of Abimaq in ADI 7066.

For Thiago Motta, a partner at Castro Barros Advogados, Moraes’ vote is clearly against constitutional orders that, as a guarantee for taxpayers, prevent states from demanding an increase in ICMS in the same financial year in which the law introduced it. According to the lawyer’s understanding, LC 190/22, according to the decision of the STF, fulfilled the role of introducing ICMS tax payment. He also complains that the reporter declares unconstitutional precisely the part of the provision that expressly defined the respect of priorities, in this case Article 3 ZK 190/22. In his opinion, this provision should serve to protect the interests of taxpayers. “A blow to taxpayers and, above all, to the Constitution of the Republic”, criticizes Motta.

So far, the rapporteur has been the only one to vote. The deadline for voting is next Friday (September 30) until 11:59 p.m. Until then, the minister can ask for an opinion or emphasis. In the latter case, the trial will be transferred to a physical plenary session, and the counting of votes will start again.

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