- Background and Subject of the Controversy
The Federal Supreme Court (STF) has concluded the judgment of Theme 1266 of general repercussion, defining the temporal effects and the constitutionality of the collection of the ICMS differential rate (DIFAL) on interstate transactions destined to final consumers not registered as ICMS taxpayers.
The debate centered on whether the annual and 90-day (nonagesimal) anteriority clauses should apply to the tax following the entry into force of Complementary Law (LC) No. 190/2022, which implemented Constitutional Amendment No. 87/2015.
- Position of the Reporting Justice and the Majority of the Court
By majority vote, the STF partially granted the appeal filed by the State of Ceará and held that:
- Complementary Law No. 190/2022 did not create or increase a tax, but merely regulated the revenue-sharing mechanism of the ICMS between origin and destination states.
- Therefore, the annual anteriority clause does not apply; only the 90-day anteriority rule (art. 150, III, “c,” of the Federal Constitution) must be observed.
- DIFAL collection is valid as of April 4, 2022, pursuant to art. 3 of LC 190/2022.
The reporting justice, Minister Alexandre de Moraes, was joined by Ministers Nunes Marques, André Mendonça, Gilmar Mendes, Luiz Fux, Flávio Dino, Dias Toffoli, and Roberto Barroso, who reaffirmed consistency with the Court’s precedents in ADIs 7066, 7070, and 7078—in which the Court recognized that DIFAL represents merely a distribution of ICMS revenue, not the creation of a new levy.
- Divergences and Modulation of Effects
Minister Flávio Dino proposed, and the majority accepted, the modulation of effects to protect taxpayers who:
- filed lawsuits challenging DIFAL collection by November 29, 2023 (date of the judgment in ADI 7066), and
- did not pay the tax during the 2022 tax year.
This exceptional modulation sought to preserve taxpayers’ legitimate expectations and good faith, especially in the retail and e-commerce sectors, which faced significant legal uncertainty during the transition period.
Voting in favor of the modulation were Ministers André Mendonça, Luiz Fux, Gilmar Mendes, Nunes Marques, Roberto Barroso, and Dias Toffoli.
The reporting justice was partially overruled on this point, as he argued that modulation should not apply.
On the merits, Ministers Edson Fachin and Cármen Lúcia dissented, holding that LC 190/2022 increased the tax burden, and thus both annual and 90-day anteriority rules should have been observed.
- Legal Theses Established (Theme 1266)
The STF Plenary, by majority vote, established the following general-repercussion theses:
I – Article 3 of Complementary Law No. 190/2022 is constitutional, as it establishes a vacatio legis consistent with the 90-day anteriority rule (art. 150, III, “c,” CF).
II – State laws enacted after EC 87/2015 and before the entry into force of LC 190/2022, with the purpose of regulating DIFAL collection, are valid, but produce effects only from the date LC 190/2022 became effective.
III – For the 2022 tax year, DIFAL collection is waived for taxpayers who filed lawsuits by 11/29/2023 and did not pay the tax during that year.
- Practical Impacts and Considerations
The decision provides legal certainty and enhances federal tax stability, consolidating the validity of DIFAL collection starting April 4, 2022, with modulated effects for pending litigation.
For companies in retail, construction, and e-commerce, key implications include:
- Confirmation that DIFAL became enforceable from 4/4/2022;
- Partial protection for litigating taxpayers who suspended payment in 2022;
- Closure of the controversy regarding anteriority rules, aligning STF understanding with state courts;
- Reduction of potential liabilities in states awaiting definitive validation of the tax.
From the perspective of state tax authorities, the ruling reinforces the legitimacy of DIFAL revenue collection and eliminates uncertainties affecting interstate tax administration.
With the judgment of Theme 1266, the STF concludes one of the most significant tax disputes of recent years, holding that DIFAL collection is constitutional and valid from April 4, 2022, subject only to the 90-day anteriority rule, while ensuring protection for taxpayers who filed suit by 11/29/2023 and did not remit the tax in 2022.