STJ upholds ICMS-Difal under Kandir
STJ recognizes validity of ICMS-Difal collection based on the Kandir Law
The 1st Section of the Superior Court of Justice (STJ) decided that the ICMS rate differential (ICMS-Difal) in interstate transactions destined for final consumers that are ICMS taxpayers could already be required based on Complementary Law No. 87/1996 (Kandir Law), before the entry into force of Complementary Law No. 190/2022 (LC 190), which regulates the collection of ICMS-Difal in interstate transactions and services destined for final consumers that are not taxpayers of the tax.
The unanimous view prevailed that the Kandir Law already contained sufficient normative density to support collection in this situation. For the panel, LC 190 did not create an indispensable condition for requiring ICMS-Difal in transactions with final consumers that are taxpayers, but rather introduced adjustments and regulatory improvements, especially with respect to transactions destined for non-taxpayers.
STF: ICMS credits repercussion recognized
STF recognizes general repercussion on ICMS credits on acquisitions of intermediate materials
The Brazilian Supreme Court (STF) recognized the general repercussion of the dispute over the right to ICMS credits on the acquisition of intermediate materials used in the production process. The controversy involves intermediate products essential to production activities that are not physically incorporated into the final product.
The virtual judgment concluded with recognition of the existence of a constitutional issue and general repercussion, with Justice Edson Fachin dissenting. Justices Cármen Lúcia, Luiz Fux and André Mendonça did not vote. On the merits, the STF decided not to reaffirm prevailing case law, so the controversy will be submitted to a later judgment by the in-person Plenary.
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