On January 24, the trial of ADIs 7066, 7070 and 7078 was included in the trial agenda of the physical plenary of the Federal Supreme Court (STF) for April 12, 2023. We remind you that the actions discuss the beginning of the collection of the ICMS tax rate differential (DIFAL), which is charged on transactions involving goods destined for end consumers who are not taxpayers of said tax.
We contextualize that the trial was suspended on December 12, 2022, following a request for a highlight by Minister Rosa Weber, current president of the STF, after a meeting held with the governors, who pointed out, in short, a loss of revenue for the States. Now, the trial will be resumed in person, in addition to being restarted, with regard to the vote count (the score was 5x3 to validate the charge only from 2023).
The lawsuits question the effective date of Complementary Law No. 190/2022, published on January 5, 2022, instituted to regulate the collection of the ICMS Tax Rate Differential (DIFAL), and the possible application of the principle of prior notice. Art. 3 of the aforementioned LC No. 190/2022 only provided for the production of the 90-day prior notice, so that the law could take effect as of April 5, 2022. However, for ICMS, the principle of 90-day prior notice, provided for in art. 150, item III, item 'c' of the Federal Constitution, does not preclude the application of the annual prior notice, so that any law that increases or institutes new taxes should take effect only in the following fiscal year, that is, in 2023.
We emphasize that in the previous judgment, Justices Edson Fachin, Cármen Lúcia, Ricardo Lewandowski, André Mendonça and Rosa Weber formed the majority for the DIFAL to only be charged in 2023, with Justices Dias Toffoli and Gilmar Mendes being defeated, who voted for the law to take effect ninety days after its publication, in addition to the reporting Justice Alexandre de Moraes, who understood that the production of effects of the rule should be immediate. However, the request for a distinction prepared by Justice Rosa Weber occurred when there was only one vote missing for the majority in favor of taxpayers to be formed (that is, to validate the collection only as of 2023, which may represent a change in understanding of some of the Justices of the Supreme Court, with the possibility of the previous understanding being overcome.
