The 6th Public Law Chamber of the Court of Justice of the State of São Paulo decided that the ICMS tax rate differential (Difal), established by Complementary Law No. 190/2022, may only be required from 2023 onwards, in accordance with the principle of annual prior notice, provided for in article 150, paragraph III, item 'b' of the Federal Constitution.
This is a relevant precedent of the TJ-SP which, analyzing the merits of the discussion, established the duty of obedience to fundamental guarantees of taxpayers regarding the requirement of a new tax. It is important to highlight that with the Second Instance decision, the effectiveness of the provision obtained by the taxpayer is reestablished, since, as pointed out in the records of the Suspension of Preliminary Injunction No. 2062922-77.2022.8.26.0000, “the effects of the suspension concern (sic) the decisions and sentences and prevail until the judgment in the second instance of jurisdiction”.
In other words, obtaining a favorable decision in the Second Instance is not affected by the Suspension of the Preliminary Injunction issued by the Court's Presidency, producing regular effects. Finally, it is worth mentioning that the matter is still pending definition by the Federal Supreme Court in ADI's 7066 and 7070, reported by Minister Alexandre de Moraes. There is no scheduled date for the trial.
