By Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes*
The Supreme Federal Court has scheduled for trial on November 22nd the Direct Actions of Unconstitutionality (ADIs) No. 7,066, 7,070 and 7,078, which discuss and question part of Complementary Law No. 190/2022, which amends the Kandir Law (LC 87/1996) to regulate the collection of the ICMS Tax Rate Differential in interstate transactions and services destined for the final consumer who is not a taxpayer of the tax.
The judgment has been eagerly awaited by taxpayers, who are waiting for the definition of the start of the production of the effects of Complementary Law No. 190/2022, that is, the moment of charging the ICMS tax rate differential (DIFAL) in the case of a non-taxpayer end consumer, whether the principle of prior notice (nonagesimal or annual) will be applied or not.
Thus, the core of the controversy lies in the application – or not – of the annual and nonagesimal (90 days) prior notice to Complementary Law No. 190/2022 – complementary legislation created after determination by the STF itself (Theme 1,093 of General Repercussion) due to the need for its existence to require ICMS-Difal, which was sanctioned by the Federal Executive only on January 5, 2022.
Reprising the handling of the matter by the Constitutional Court, it is known that a good portion of the Ministers, in a virtual trial, had already cast their votes, with the score at that time being 5 to 3 for the charge to be made only from 2023 onwards. However, after a request for a highlight (on 12/12/2022) by the now retired Min. Rosa Weber, the trial will be restarted in the STF's In-Person Plenary, with all the scores reset.
Our team will continue to closely monitor developments on this topic and is available to provide any clarifications.
*(With the collaboration of Pedro Antônio GM Buzas)