STF Sets April 2022 Start for ICMS Difal, Bars Retroactive Charges for Early Litigants

Overview

• The court voted 9–2 in a virtual session concluding on Oct. 21 to allow states to collect the Difal from April 4, 2022.
• Under modulation proposed by Justice Flávio Dino, companies that sued by Nov. 29, 2023 are shielded from 2022 liabilities, while retroactive collection remains possible for others.
• The decision resolves a dispute over whether the tax change required annual anteriority or only the 90‑day waiting period, adopting the nonagesimal approach.
• Estimates cited in the case indicate states could forgo roughly R$10 billion under the carve‑out, a 2023 start would have meant about R$14 billion, and the Union may indirectly gain around R$3.4 billion.
• Rapporteur Alexandre de Moraes led the majority joined by Gilmar Mendes, Luiz Fux, André Mendonça, Nunes Marques and Luís Roberto Barroso, while Edson Fachin dissented with the support of Cármen Lúcia.