On May 18, Justice Alexandre de Moraes denied the preliminary injunctions requested by the Brazilian Association of Machinery and Equipment Manufacturers (ABIMAQ) and the National Union of Steel Products Distribution Companies (SINDISEDER) in Direct Actions of Unconstitutionality (ADI's) No. 7066 and 7075. The requests aimed to suspend the enforceability of the ICMS tax rate differential in 2022 (Difal), in view of the need to observe the prior exercise. The requests of the States of Alagoas and Ceará in ADI's No. 7070 and 7078, which sought to demand the tax after the publication of Complementary Law No. 190/2022, that is, as of January 5, 2022, were also denied.
The rapporteur of the ADI's that discuss the collection of Difal, Minister Alexandre de Moraes, denied the preliminary injunction requested by SINDISEDER, considering that the entity would not have active legitimacy to propose the Direct Action of Unconstitutionality.
Regarding the preliminary injunction requested by ABIMAQ, the Minister considered, in a summary judgment, that there were no strong elements indicating that the necessary observance of the annual prior notice in relation to the collection of Difal, resulting from the enactment of Complementary Law No. 190/022, was necessary. The basis used for this was that LC 190/22 was not a rule of Tax Law, but rather a division of revenues.
The decision shows a likelihood that Minister Alexandre de Moraes will position himself in favor of charging Difal in 2022 when the final judgment on the matter is made.
It is important, however, to remember that, at the time of the judgment of ADI 5,469, in which it was discussed whether the changes promoted by Constitutional Amendment No. 87/2015 would require the enactment of a complementary law to regulate the subject, Alexandre de Moraes' vote was defeated, with the Court's understanding prevailing in the sense that EC 87/2015 created a new legal-tax relationship.
Thus, the position now adopted is not surprising and does not demonstrate any inclination on the part of the STF in relation to the controversy raised.
It is also worth remembering that both the Attorney General's Office (“PGR”), represented by Augusto Aras, and the Attorney General's Office (“AGU”) were against the Difal requirement throughout 2022.
Our tax team has worked on dozens of cases on this topic in several federal units. Given the difficulty imposed by art. 166 of the National Tax Code (“CTN”),[1] of refund of undue tax payments related to indirect taxes, as well as due to recent decisions by the STF modulating the effects of tax decisions favorable to taxpayers, we maintain our orientation that the matter should be questioned in court and, in the event of failure to obtain a preliminary injunction, the amounts related to Difal/22 should be deposited in court.
[1] Art. 166. The refund of taxes that involve, by their nature, the transfer of the respective financial burden will only be made to those who prove to have assumed the said burden or, in the case of having transferred it to a third party, to be expressly authorized by that third party to receive it.
