The Federal Supreme Court (STF) has initiated the trial that will determine whether States can levy the tax rate differential (Difal) for ICMS (State Goods and Services Tax) upon e-commerce or if, otherwise, it is necessary to wait for the National Congress to issue a Complementary Law.

The session began on November 11th and, after the votes of Justices Marco Aurélio and Dias Toffoli, both against the levy, Justice Nunes Marques requested to see the record and suspended the discussions. According to Marques, more time is needed to study the subject.

The discussion is based on Constitutional Amendment No. 87, dated 2015, which allowed the States of destination of the goods to levy a ICMS tax rate differential on transactions destined for final consumers, whether or not they are taxpayers of the tax.

According to Bruno Zaroni, partner at Zaroni Advogados, “this type of situation has become increasingly common in the country, as the States, which are eager to increase their collections, start to disregard the need for formal regulation of the matter, given the omission by Congress for years or decades on end in this regard, and implement taxation on their own. Ultimately, the Judicial Branch is asked to settle the conflict, the only certain losing party of which will always be the taxpayer.”