ARTICLE ABComm

Difal of e-commerce: what is the trend of judgment in the courts?

The beginning of May marks the month of the supposed “entry into force” of Complementary Law nº 190/22. The states of Acre, Alagoas, Amazonas, Ceará, Minas Gerais, Pernambuco and São Paulo are already applying this rule when inspecting and demanding the ICMS Difal. The acronym corresponds to the tax rate differential on the Circulation of Goods and Services.

However, even before the end of the novena (April 5), states such as Bahia, Piauí, Paraná, Rio de Janeiro, Rio Grande do Sul and Santa Catarina were already unduly demanding the difference in the rate on interstate sales with delivery to the final consumer

We only had this legal novelty presented to taxpayers as a valid rule after the recognition of the unconstitutionality of the past collection based on an agreement of Confaz (National Council of Finance Policy). And it was in this year that the most notorious publicity about the constitutional principle of annual precedence took place.

On the part of ABComm, 27 class actions were filed in all states with the purpose of declaring the ICMS Difal unenforceability in 2022 and that the amounts paid during the year be returned to e-commerce.

In decisions already passed, judges of the first degree expressed favorable opinions to the suspension of the collection. Furthermore, the substitute attorney general Adler Anaximandro Alves argued that the enforceability of Difal should only occur from 2023 on.

The collective actions already have more than 90 companies. It is important to point out that, for the e-commerce to take advantage of any positive result, it must update its registration with the association and join the cause through the link. This step is crucial for the associated virtual stores to avoid the risk of a modulatory decision.

Source: Revista Eletrolar News #148