FecomercioSP asks the STF to recognize the validity of the fee only from 2023

At the end of October, the Supreme Legal Council (CSD) and the Council for Tax Affairs (CAT), both of the Federation of Trade in Goods, Services and Tourism of the State of São Paulo (FecomercioSP), sent reminders to the Ministers of the Supreme Court (STF) for the judgment of the Direct Action on unconstitutionality ( ADI) 7,066, which deals with the application of the principle of annual priority for the collection of the ICMS aliquot difference (Difal). Voting is scheduled for early November.

To remind: in December 2021, Congress approved a project that would regulate the collection of Difal / ICMS in interstate operations and benefits aimed at non-taxpayers. Despite the negative effect on business, the proposal progressed, transformed into Supplementary Law 190, published on January 5, 2022.

Even with the legal definition, tax collection in 2022 is still a matter of debate and legal uncertainty for companies. FecomercioSP, which has been monitoring the issue since 2016, claims that Difal/ICMS may only be required from January 1, 2023, given that Article 3 of Law 190 provides for compliance with the principle of full, annual and nonagesimal – as determined by the Federal constitution. This principle serves so that the taxpayer is not “surprised” by new burdens.

ADI, proposed by the Brazilian Association of the Machinery and Equipment Industry (Abimaq), seeks to give this interpretation to the subject, that is, states and the federal district can only require Difal/ICMS from next January (in interstate operations aimed at end consumers who do not pay this tax ).

In September, the reporter of the lawsuit at the STF, Minister Alexandre de Moraes, concluded that the lawsuit was unfounded, as well as declared the constitutionality of LC 190 and the validity of the collection as early as 2022 – realizing that this law would not respond to the creation or increase of tribute. The trial was interrupted after Minister Dias Toffoli requested an inspection.

Given that FecomercioSP was received as a amicus curiae in ADI 7,066, the panels emphasize to the STF the importance of the topic not only for large e-commerce networks, but also for smaller companies that have expanded their business in interstate operations to end consumers through digital channels, as a result of business restructuring in the conditions of restrictions imposed by the struggle against the pandemic.

In addition, ICMS is a complex tax that includes different triggering events, since it has different hypotheses of incidence and different bases for calculation – the action of the turnover of goods; provision of interstate and intercity transportation services; and the provision of communication services and the import of goods from abroad – allowing the construction of matrix rules for different applications for each possibility.

Context

Difal/ICMS was established by Constitutional Amendment (EC) 87/2015, which created a division of revenues from the collection of operations carried out by companies that sell to final consumers who do not pay ICMS, with regard to the collection of this tax between the States of origin and destination of goods or services.

Prior to the amendment, the collected ICMS product was only for the country of origin, even if the actual consumption of the goods took place only at destination – therefore the aim of this amendment was to give isonomic treatment between countries.

By creating this division of tax revenues, Difal began to be charged improperly after the conclusion of the ICMS agreement 93/2015. More recently, the STF has admitted that the collection can only take place after the issue is regulated by a supplementary law, not by an agreement. However, as a way to protect the state’s collections, the agency moderated the effects of this decision, giving Congress time to approve a bill that would allow the collection to be maintained in 2022.

In the case of Difalo, at least two important aspects have been changed by EC 87/2015: the personal criterion, since the active subject of the legal and tax relationship has become the country of destination and not only the country of origin; and the quantitative criterion, through the constitution of a new rate (the difference between the interstate and internal rates).

This is even the STF’s understanding expressed in the vote of Minister Dias Toffoli in the second ADI (5,469), in which he clarified that “the innovations implemented by EC 87/2015 would imply “a new legal-tax relationship between the sender of the good or service ( of the taxpayer) and the country of destination in the operations”, emphasizing that there was a “significant change in the active subjection to tax liability”, when he declared the demand for this collection through the agreement unconstitutional.

In this sense, FecomercioSP understands that it has already been decided and confirmed by the court that Difal has undoubtedly created a tax liability, i.e. that it has introduced a new tax, and must be subject to the rules related to the principle of priority – especially the one that prohibits tax collection in the same year in which its basic law was published.

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