The Supreme Federal Court had included Direct Actions of Unconstitutionality No. 7,066, 7,070, 7,078 on the virtual judgment agenda between September 23, 2022 and September 30, 2022. These ADIs deal with the need or not to observe the principle of annual prior notice in relation to the changes promoted by Complementary Law No. 190/2022, which regulated Difal under the terms established by Constitutional Amendment No. 87/2015.

After the vote of the Rapporteur, Minister Alexandre de Moraes, dismissing the ADIs, Minister Dias Tofolli requested a review. There is no new date set for the resumption of the trial.

It is worth remembering that Difal has already been discussed in two other judgments by the Federal Supreme Court. In ADI No. 4,628, the Court dismissed the collection of Difal instituted through Protocol No. 21/2011, instituted by the National Council for Tax Policy (Confaz), on the grounds that there was no constitutional provision for the collection of the tax.

Subsequently, Constitutional Amendment No. 87/2015 was enacted, providing for the sharing of the tax between the states of origin and destination, in interstate transactions that allocate goods to non-ICMS taxpayers, the tax would be shared between the State of Origin. Before the enactment of LC 190/2022, some states enacted Agreement No. 93/2015 to try to institute Difal again. However, in ADI No. 5,469, the STF, by majority, ruled some clauses of the agreement as unconstitutional.