The Supreme Federal Court will resume the trial of Direct Actions of Unconstitutionality No. 7,066, 7,070 and 7,078 between December 9 and 16, 2022. The ADIs will define whether the principle of annual prior notice should be applied 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. So far, the trial has a favorable score of 5×2 for taxpayers, exempting companies from paying Difal in 2022.

Previously, Minister Alexandre de Moraes, the rapporteur of the case, cast his vote to dismiss the ADIs, ruling on the constitutionality of the tax requirement in 2022. The trial continued between November 4 and 11, when Min. Dias Toffoli cast his vote for the Difal to be charged ninety days after the publication of the law, that is, from April 5, 2022.

However, Justice Edson Fachin understood that Complementary Law No. 190/2022 should respect the principle of annual prior notice, so that Difal could only be required from 2023 onwards. The vote was supported by Justices Luís Roberto Barroso, Rosa Weber, André Mendonça and Cármen Lúcia, leaving only one vote for the STF to form a majority on the matter. The trial was interrupted on November 11 due to a request for review by Justice Gilmar Mendes.

Given that this is the third attempt to judge the case, the outcome of the discussion is expected by December 16th. If the STF decides in favor of the taxpayers, it is likely that the effects of the decision will be modulated. Our tax team is available for further clarification.