ARTICLE- ABCOMM

STF will judge unconstitutionality of the ICMS-Difal 2022

The Rate Differential collection of the Imposto Sobre Circulação de Mercadorias e Serviços ICMS (Tax on the Circulation of Goods and Services) has caused concern and dissatisfaction among e-commerce businesses. The aim of the measure is to balance tax collection between states, since many e-commerce companies were concentrated in the South and Southeast regions of the country, where the tax rate was lower.

With the measure, the destination states were benefited, because the goods will effectively be “consumed” in these locations. On the other hand, the charge increased bureaucracy and complexity when calculating and collecting the tax, in addition to increasing companies’ operating costs and the final price of products. Result: more expensive online purchases, directly affecting consumers.

In 2021, the Direct Unconstitutionality Action was judged. The Brazilian Association of Electronic Commerce (ABComm) obtained recognition, but the Supreme Court applied the modulatory effect only to e-commerces that had entered prior to the judgment of the actions.

Although the requirement to issue the complementary law was met, some points were not respected. Therefore, actions were filed to challenge the constitutionality of the new rule, including by ABComm itself, in the last two years.

Recently, the STF announced the completion of the trial. That is, decisions with great repercussions are modulated, which means that the benefits will only accrue to those taxpayers who file demands within the period.

Source: Eletrolar News Magazine- Edition #158