Another important trial took place this Wednesday (24.02) in the Plenary of the Supreme Federal Court, on a highly anticipated topic: the unconstitutionality of the collection of additional ICMS by the States in e-commerce, known as the differential tax rate or “Difal”. The trial was based on the analysis of two cases, one of general repercussion (RE No. 1,287,019) and a direct action of unconstitutionality (ADI No. 5,469).

With a very tight score (six votes to five), the majority of ministers understood that the charge, in order to be implemented, requires regulation through complementary law, which does not exist to date.

The core of this entire discussion began with Constitutional Amendment No. 87/2015, which brought significant changes to the way state taxes are charged, allowing states where goods are destined to charge a difference in ICMS rates on transactions destined for end consumers, whether or not they are taxpayers of the tax.

In turn, the doubt revolved around the possibility of the States charging Difal, even in the absence of complementary legislation to establish general collection rules. Even without the enactment of a complementary law, the collection was carried out based on Confaz Agreement No. 93/15, which establishes the procedures to be observed in transactions that allocate goods and services to end consumers who are not ICMS taxpayers located in another federated unit.

However, the panel understood that regulating the matter through a Confaz Agreement is inadequate, and that the enactment of a supplementary law is essential for this purpose. The thesis established in the judgment was the following: “The collection of the difference in the ICMS tax rate, as introduced by EC 87/15, presupposes the enactment of a complementary law containing general rules.” 

Despite the decision, the ministers approved the modulation of its effects, which means that the measure will only be valid for the future. In addition, it was also established, by majority vote, that the prohibition of the charge will begin in the year 2022. This means that the States can continue to charge Difal this year, as well as pressure the National Congress to have the Complementary Law enacted as soon as possible.

It is worth noting, however, that the modulation of effects does not affect companies classified under the Simples Nacional taxation regime, which are exempt from paying Difal, nor taxpayers with ongoing legal actions on the subject.