We take the opportunity to refer directly to some clarifications about the incidence of DIFAL in sales to ICMS non-taxpayers as well as to verify whether a company fits this scenario and, in case it does, for immediate adoption of the appropriate legal measures.
We point out that many are the news published by newspapers, specialized magazines and tax authorities, about the incidence and collection of DIFAL after the decision of the Supreme Court that judged its requirement without the existence of the competent Complementary Law unconstitutional. It should be added that in the modulation applied by the Supreme Court, it was found that until this law was published, DIFAL could not be collected as of the year 2022.
Thus, for the correct adoption of the decision of the Supreme Court, we have to consider the following legal premises:
1 – What transactions are covered by the decision of the Supreme Court?
Answer: INTERSTATE PURCHASES FOR USE AND CONSUMPTION OF CONSUMERS WHO ARE ICMS NON-TAXPAYERS (SUCH AS BANKS, COMPANIES PROVIDING SERVICES OF ANY KIND, PHYSICAL PERSONS).
2 – Who is the DIFAL taxpayer?
Answer: In the operations provided for in item 1, the sender of the merchandise is DIFAL taxpayer, and must collect the internal ICMS rate for the state of their location and the differential rate for the recipient state.
IMPORTANT NOTE: Take into account that, as decided by the Supreme Court, the place of physical entry of the goods, is what defines the State entitled to DIFAL.
3 – Defining who is not a contributor to ICMS?
Answer: Companies that do not work on merchandise purchase and sale operations ate not ICMS taxpayers (examples mentioned in item 1). Companies that by some internal rule of the States of the Federation have to make their state registration in SEFAZ, on account of having to issue invoices to cover the physical circulation of merchandise (fixed assets or goods of use and consumption), are also considered ICMS non-taxpayers (including construction companies and other goods such as bridges, highways etc.).
4 – Date of publication of Complementary Law (in force) LC 190, of 01/04/2022, published in the Official Gazette of 01/05/2022)
Answer: In view of the applicable legal principles, as well as the answers to the above premises, we have the following DIFAL tax regime:
1 – For sales to final consumers, ICMS non-taxpayers, within the period from 01/02/2022 to 04/03/2022, there will be no incidence of DIFAL;
2 – For sales to final consumers, ICMS non-taxpayers, within the period from 04/04/2022 to 12/31/2022, there will be incidence of DIFAL, depending on each State of the Federation legislation;
In the cases of item 2, we recommend the filing of appropriate legal measures regarding the ninety-day principle, because its incidence should occur only for sales from 01/01/2023.
IMPORTANT NOTE (1): In case preliminary injunction is not issued suspending the collection and application of fines and interests, we recommend making the judicial deposit of DIFAL.
IMPORTANT NOTE (2): We note that the respective legal measures must be filed at the venue / address of the ICMS non-taxpayer sender.
We recommend analysis of the operations performed with the “so-called end users”, to verify whether they fit the rules defined above, especially within the concept of ICMS non-taxpayer.
We are at your disposal for further clarification deemed necessary.