Senate approves bill that regulates Difal collection

By: Guilherme Martins

The Senate approved on Monday (12/20) the Bill of Supplementary Law (PLP) 32/2021, which aims to regulate the collection of rate differential (Difal) due on interstate shipments to final consumers who are not ICMS taxpayers. The PLP was approved in an extraordinary session at the request of the governors, who fear that the bill will not come into force in 2022. This is because, for it to be effective as of next year, it is necessary to observe the principle of annual anteriority, a principle according to which entities are forbidden to collect taxes in the same fiscal year as the publication of the law that created or increased them.

The PLP was edited to make effective the changes promoted by Constitutional Amendment 87/2015, especially in the form of state tax collection, allowing the states which are destination of the goods to make the ICMS rate differential collection in transactions destinated to end consumers, whether or not taxpayers of the tax.

The need and urgency for a complementary law to regulate the matter arose after the Federal Supreme Court (STF) decided, based on the  two cases analysis, one of a general repercussion (RE No. 1.287.019) and another a direct unconstitutionality action (ADI No. 5.469) that: “The collection of the rate difference alluding to the ICMS, as introduced by EC 87/15, presupposes the edition of a complementary law conveying general rules.” Before the judgment by STF, the collection was carried out based on Confaz Agreement no. 93/15.

In summary, PLP 32/2021 brings the following definitions:

  • in interstate operations that destine goods to non-taxpayers, the sender will be an ICMS taxpayer due to the State of destination;
  • in interstate remittance to non-taxpayers, the place of the operation will be the sender’s establishment “or where the provision starts”;
  • when the sender and recipient are located in different States from the one to which the goods will be sent, the physical criteria will be adopted (place of the effective destination of the good) to determine which State is entitled to receive the Difal;
  • the exact timepoint of the Difal taxable event will occur: (a) when the shipment is to a taxpayer, at the entry of the goods into its State; and (b) when the shipment is to a non-taxpayer, at the time of exit from the sender’s facility, and
  • the ICMS calculation basis.

It is important to note that, although approved by the Senate, the PLP now needs to be approved by the President. If approved this year, besides the annual grandfathering principle, the nonagesimal anteriority principle must be observed, which means that the law will only become effective after 90 days of its publication.

Effects only after 90 days of its publication. At this point, resistance is expected from state tax inspectors, which may result in the matter judicialization.

Informativos

Inscreva-se em nossos informativos para ficar informado de nossos próximos eventos, e receber nossas novidades em primeira mão.

Deixe um comentário

O seu endereço de e-mail não será publicado. Campos obrigatórios são marcados com *

Ative o JavaScript no seu navegador para preencher este formulário.
Nome
Caixas de seleção