The requirement of ICMS tax differential (DIFAL) in interstate operations destined for final consumers has always been the subject of doubts and discussions.
The matter is complex. The agreements published by the National Council for Finance Policy (CONFAZ) do not help and neither do the States.
We will try to explain the problem of DIFAL in a simple way and, for that, it is important to look at the topic in perspective.
As a general rule, ICMS is due to the State where the goods are originated.
Given the wide spread of trade through e-commerce and, considering that the large distribution centers have a greater presence in the Southeast States of the country, there was a lot of discussion about the concentration of the payment of ICMS in a few States.
The result of these discussions was the edition of Constitutional Amendment nº 87/2015, establishing a division of ICMS payment between the States of origin and destination of the goods.
After the edition of Constitutional Amendment, CONFAZ published Agreement No. 93/2015, providing for the general rules applicable to DIFAL (such as assessment of the calculation base, responsibility for tax collection, ancillary obligations, among others). As a result, the States changed their domestic laws, in order to operationalize the DIFAL requirement.
In February 2021, the Federal Supreme Court (STF) decided in the judgment of RE nº 1.287.019/DF, that the Constitutional Amendment nº 87/2015 imposed a new tax legal relationship between the person that collects the tax (States) and the person that pays the tax (taxpayers), which is why, following the tax system outlined in the Federal Constitution, DIFAL cannot be demanded before the enactment of a Complementary Law providing for the general rules for its incidence.
With such understanding, the STF ruled CONFAZ Agreement No. 93/2015 unconstitutional for invading matters reserved for complementary laws. There was also a modulation of the effects of the decision for January 1, 2022, applying the decision to cases from that date.
The States, through their representatives in the National Congress, should approve a Complementary Law to regulate the collection of DIFAL. And that is what actually happened: on January 4, 2022. Complementary Law nº 190/2022 was published.
And it is from such law that the current discussion about DIFAL was born.
Complementary Law No. 190/2022 makes reference to the constitutional norm of the 90-days precedence to produce effects.
It so happens that, by providing for a new tax incidence rule, the Federal Constitution requires the prior year rule – which means that DIFAL can only be charged by States from January 1, 2023.
Following the legislative process of Bill nº 32/2021, which resulted in the edition of Complementary Law nº 190/2022, there was a delay in the presidential sanction, since the Complementary Law was approved by the Federal Senate still in 2021, on December 20, 2021.
The States, of course, understand that DIFAL could be charged immediately (given that they sought the publication of their internal rules regulating DIFAL even before the publication of Complementary Law No. 190/2022). The disrespect to the constitutional norm is flagrant.
From a practical point of view, taxpayers can have their goods confiscated by State inspectors if the DIFAL is not collected. And taxpayers, once again, are obliged to propose legal measures to have their constitutional rights preserved. What’s new?
