The full bench of the Federal Supreme Court began the analysis of the constitutionality of the requirement for the ICMS rate differential of a company opting for Simples Nacional, when the acquirer qualifies as a taxpayer. This is an extraordinary appeal RE 970821-RS (topic 517) in which the general repercussion was recognized.
The appeal questions rules in Rio Grande do Sul, very similar to those in São Paulo. Thus, the outcome of the judgment will also impact the requirement by the State of São Paulo.
The possibility of success of the taxpayers is significant, considering that, despite the fact that Judge-Rapporteur Edson Fachin has ruled for the constitutionality of the requirement, Justices Alexandre de Moraes, Roberto Barroso, Cármen Lúcia and Ricardo Lewandowski decided that Difal, in this case, is unconstitutional. Thus, only two more votes are required for the company that has chosen Simples Nacional to be free to pay the rate differential. Furthermore, the Attorney General’s Office also issued an opinion in favor of the taxpayer.
“However, so that companies levied by Simples Nacional and that pay the ICMS rate differential in their operations may benefit from the probable understanding in favor of the unconstitutionality of the tax, they must, as soon as possible, file their own lawsuit, to try and prevent the payment in limine”, concludes Bruno Zaroni, partner at Zaroni Advogados.
Liability: Jornal Contábil