Bruno Calfat Advogados represented an association of companies from the retail sector in the judgment of Appeal No. 1426271. Given the relevance of the matter, the Supreme Court recognized the case as one of general significance (Theme 1,266), establishing a binding precedent.
In this case, the Court examined whether, in light of Articles 18, 60 §4 (I), 146-A, 150 (II, III, b and c), 151 (III), 152, and 170 (IV) of the Federal Constitution, the annual and ninety-day (nonagesimal) anteriority rules should apply to Complementary Law No. 190/2022, which regulates the beginning of the ICMS-DIFAL levy by the States on interstate transactions involving goods and services destined for final consumers who are not taxpayers of the levy. The Court also deliberated on whether the States could begin collecting the tax as early as 2022, applying only the ninety-day rule and disregarding the annual anteriority rule, or whether collection could only commence in 2023, in which case both constitutional requirements would be observed.
In the judgment, the Court, by majority, partially upheld the appeal filed by the State of Ceará, recognizing the validity of the collection of ICMS-DIFAL levy as of 2022, pursuant to Article 3 of Complementary Law No. 190/2022. The Supreme Court also upheld the constitutionality of state and Federal District laws regulating the ICMS-DIFAL levy issued after Constitutional Amendment No. 87/2015, even if enacted prior to the aforementioned complementary law.
However, following the reasoned opinion of the Supreme Court Justice Flávio Dino, the Court decided to give prospective effect to its ruling and concluded that, exclusively with respect to the 2022 fiscal year, the ICMS-DIFAL should not be levied on taxpayers who failed to pay the tax during that year and had filed a lawsuit challenging the levy by the date of the judgment of the Direct Action of Unconstitutionality (ADI) No. 7066 (November 29, 2023).
According to the Court Justice, the prospective effect was necessary to avoid retroactive tax surprise for taxpayers who had already challenged the validity of the levy by the States in 2022.
In his words, “the average taxpayer could not have foreseen that they would be compelled to pay the differential retroactively within the same fiscal year” and “[a]llowing indiscriminate collection now would violate the principle of non-surprise in tax matters—a corollary of legal certainty—and would unfairly punish the economic agents who acted in good faith by turning to the Judiciary before the jurisprudence was consolidated.”
Echoing the majority’s reasoning, Court Justice Gilmar Mendes emphasized that modulation is the “appropriate instrument to harmonize the principles at stake” and “best embodies the tenets of legal certainty, the protection of reliance, and objective good faith, while simultaneously promoting a solution of greater social interest and economic rationality.”