By Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes*

In November, the ADIs 7,066, 7,070 and 7,078 were judged by the Plenary of the Federal Supreme Court (“STF”), in which the correct moment in which the States could have charged ICMS-Difal was discussed.

The issue was known to taxpayers, many of whom appealed to the Judiciary to avoid collecting the tax during 2022, arguing that it should start in 2023. The core of the controversy was the application of the annual and nonagesimal (90 days) prior notice to Complementary Law No. 190/2022, created after a determination by the STF itself (Theme 1,093 of General Repercussion) due to the need for its existence to require ICMS-Difal, which was only published on January 5, 2022.

The rapporteur of the case, Justice Alexandre de Moraes, had initially voted for the immediate requirement of the tax, but understood that the 90-day prior notice should be applied to article 3, as it refers to article 150, paragraph III, item “c” of the Federal Constitution. The understanding was followed by Justices Gilmar Mendes, Luiz Fux, Dias Toffoli, Nunes Marques and Luís Roberto Barroso, rejecting the application of the prior notice of exercise and charging the tax as of April 5, 2022.

Ministers Edson Fachin, André Mendonça, Rosa Weber, Ricardo Lewandowski and Carmen Lúcia, in turn, understood that there should be respect for the prior exercise, so that Difal could only be required in the year 2023, remaining as an outdated thesis.

Although the topic may still be changed in terms of General Repercussion in Theme No. 1,266, there is little expectation of a change in the understanding of the STF, which relativized the application of a constitutional principle in Complementary Law No. 190/2022.

Our team will continue to closely monitor developments on this topic and is available to provide any clarifications.

(with the collaboration of Davi Lima Matos)