In the first week of 2022, the Presidency of the Republic sanctioned Complementary Law 190/2022. The objective? To regulate the collection of ICMS on interstate transactions and services destined to end consumers who are not taxpayers of the tax. This is a consequence of the ruling by the Federal Supreme Court (STF) in Direct Action of Unconstitutionality 5469, authored by our association. Through it, it was concluded that the changes promoted in relation to the tax by Constitutional Amendment 87/2015 would only be applicable with the enactment of a complementary law regulating the matter. Thus, due to the great impact it would have on the states, the agency allowed the differential in tax rates (Difal) to be required without a complementary law during the year 2021.
What we saw from then on was a rush to approve a complementary bill that year. It was known that, otherwise, it would not be possible to require Difal on interstate remittances for non-ICMS taxpayers in 2022. The bill was proposed by the Federal Senate, approved by both houses in December and sanctioned on January 5. There are no major news or surprises from a material point of view. The point of concern is another. When will Complementary Law 190/22 be able to take effect and, consequently, when will Difal be able to be required on interstate remittance transactions?
The answer lies in article 150, III, b, of the Federal Constitution, which prohibits the collection of taxes in the same financial year in which the law that instituted or increased them was published. This is the principle of annual precedence, which seeks to protect taxpayers from being surprised by taxing entities, bringing greater legal certainty to the legal-tax relationship.
The need for its observance, in our understanding, is quite clear and is in line with the understanding of the STF itself. When judging ADI 5469, the body established that “EC No. 87/15 created a new legal-tax relationship between the sender of the good or service (taxpayer) and the destination state in transactions involving goods and services destined for end consumers who are not ICMS taxpayers”. A new legal-tax relationship means the establishment of a new form of taxation, and therefore it is necessary to respect the annual prior notice. Therefore, Difal can only be required as of 2023.
Unfortunately, the expectation is that state tax authorities will once again disregard constitutional requirements, forcing the DIFAL requirement to be implemented in 2022. Although this behavior is completely undesirable, it is not unexpected. The history of the tax rate differential has already been marked by a series of illegalities and arbitrary actions on the part of states and the Federal District.
It is worth remembering that the arbitrary actions began in 2011, when several states and the Federal District signed a memorandum of understanding with the National Council for Tax Policy (CONFAZ), establishing the Difal for interstate remittances to non-taxpayers of ICMS to the destination state, in complete dissonance with what was provided for in the current constitutional order. As a result, companies had to live with a double requirement for part of their ICMS until, in 2014, the STF declared the unconstitutionality of Protocol 21. It is interesting to know the signaling by some ministers that this intended dynamic had a bias towards fiscal justice, showing that it would make sense to amend the Federal Constitution to get rid of the distortion that existed in the system at the time.
As a result of this movement, EC 87/2015 was created in 2015, making the requirement for Difal by the destination state constitutional. Five years passed until the aforementioned ADI, filed by ABComm, was ruled admissible by the STF. However, state tax authorities, which have historically committed arbitrary acts in relation to the subject, were once again rewarded with the modulation of the effects of the decision. They were able to demand, throughout 2021, a tax that was recognized as unconstitutional, in addition to not having to return the amounts improperly demanded since 2016.
“If you want to predict the future, study the past.” This phrase attributed to Confucius gives us an indication that the states will, once again, disrespect the Federal Constitution, demanding Difal as early as 2022, violating the principle of annual precedence.
The historical behavior of the STF regarding arbitrary acts related to Difal also serves as an incentive for early demands by state tax authorities. Whenever excesses were committed in relation to the subject, the effects of the STF's unconstitutionality ruling were modulated. It is a case of bite and blow: the STF recognizes fiscal arbitrariness, but, using obtuse criteria of relevant social impact, allows the unconstitutionality to prevail in the end.
The only remedy, as taught by the judgments of ADIs 4628 and 5469, is for taxpayers to challenge the issue in court before the STF pronounces its decision. These cases are an exception to the modulation of effects when declaring the unconstitutionality of both Protocol 21/2011 and Agreement 93/2015. The year 2022 is already beginning with great expectations of an increase in the already abundant Brazilian tax litigation. It is up to taxpayers to choose whether they will succumb to the excesses that are to come or whether they will learn from the past and challenge the unconstitutional requirement of Difal in the coming months.
Learn More: https://www.rotajuridica.com.br/artigos/difal-e-a-lc-190-22-o-novo-capitulo-de-uma-historia-de-ilegalidades/
