Until 2015, all ICMS (Value-Added Tax on Sales and Services) levied on the operation of shipping merchandise from one state to another was collected to the state where the selling company was headquartered. However, through Constitutional Amendment No. 87/15, the National Congress determined an ICMS rate differential (Difal), which is now shared between the state of origin and the state of destination of the merchandise.

Taxpayers appealed to the Judiciary, claiming that the States could not charge the ICMS Difal without the issuance of a Complementary Law regulating them, as it would constitute a violation of the principle of legality. This matter installments was judged by the Brazilian Suprme Court in February 2021, and it was decided that the Federal Constitution “does not authorize the collection, by the states, of the ICMS tax corresponding to the rate differential for interstate transactions and with final consumers who are not tax payers prior to the advent of a complementary law”. In addition to declaring the Difal collection unconstitutional, the STF, through modulation of effects, allowed the Difal to be levied during 2021, so that the unconstitutionality of the collection would only take effect in 2022.

In this context, Complementary Law no. 190/22 was approved to cover this gap, and duly institute the collection of the Difal. But this Law was sanctioned by the Executive Branch only on January 04, 2022. And in accordance with the principle of anteriority, the Law may only become effective in 2023.

It so happens that many states of the Federation are insisting on charging the ICMS Difal, as they argue the existence of a previous local law that would authorize such collection. Companies in the interstate commerce sector, therefore, are already protecting themselves from this charge, with the obtainment of several favorable decisions. As an example of a favorable decision for taxpayers, it may be cited Judge Paulo Afonso, of the 7th Public Court of the Federal District: “Thus, even though some states have edited their laws in 2021 to support the requirement for the institution of the ICMS Difal, the fact is that the initial term for the charge of the tax must necessarily observe the effectiveness of LC 190/22.”

This matter will probably still be the subject of much debate throughout the year 2022, since some states will insist on collecting the tax, so it will be up to the companies to resort to the Judiciary to obtain security in their interstate operations.