By Matheus André Ribeiro and Rafael Pilch de Matos
The debate over the legality of collecting the ICMS Differential Rate (DIFAL) from recipients who are taxpayers of the tax before the enactment of Complementary Law (LC) No. 190/2022 has gained new momentum in Brazil’s tax-litigation landscape. After years of uncertainty and disputes between taxpayers and state tax authorities, the Superior Court of Justice (STJ) has designated REsp 2,133,933/DF and REsp 2,025,997/DF as representative cases of the controversy, which will be resolved under Repetitive Theme No. 1,369, scheduled for judgment on December 10, 2025.
The controversy arose from Constitutional Amendment (EC) No. 87/2015, which changed the DIFAL regime by establishing the current revenue-sharing system between the state of origin and the destination state, as well as allocating responsibility for remittance of the DIFAL in transactions involving recipients who are or are not ICMS taxpayers.
However, after EC 87/2015 was enacted, the National Congress failed to issue a complementary law regulating the matter at the national level. To fill this legislative gap, state governments, through the National Council for Fiscal Policy (CONFAZ), issued ICMS Agreement No. 93/2015, establishing rules for the collection of DIFAL in transactions involving non-taxpayer recipients.
In cases involving taxpayers as end consumers, states maintained the collection based on the understanding that LC No. 87/1996 (the Kandir Law) already provided sufficient legal grounds for DIFAL in those situations. According to this view, EC 87/2015 merely redistributed tax revenue and did not “create” a new tax, making a new complementary law unnecessary.
This position, however, was promptly challenged by taxpayers, who argued that agreements (convênios) do not carry the normative force required to satisfy Article 146 of the Federal Constitution, which reserves to complementary law the authority to establish general rules of tax law. Moreover, in cases involving end consumers who are taxpayers, taxpayers argue that EC 87/2015 substantially altered how ICMS is levied, requiring new regulation through complementary law—since the Kandir Law contains no such provision.
In the years that followed, collection continued based on these state premises, despite the absence of a specific complementary law. It was only in 2021 that the Federal Supreme Court (STF) addressed the issue when ruling on General Repercussion Theme 1,093. In that case, which involved non-taxpayer consumers, the Court held that the collection of DIFAL under the system created by EC 87/2015 required a complementary law.
Following that decision, Complementary Law No. 190 was published in 2022, regulating the matter nationwide. Nonetheless, a key question remained: Is the collection of DIFAL in transactions involving end consumers who are ICMS taxpayers before the law came into force legitimate?
From a jurisprudential standpoint, in Repercussion Theme 1,331, the STF recently declined to recognize general repercussion, holding that the issue of whether a legal basis existed for DIFAL in transactions involving taxpayer recipients before LC 190/2022 is infraconstitutional—that is, it must be resolved under federal statutory law.
As a result, responsibility for settling the matter now lies with the STJ, which will decide the issue on December 10, 2025, through the two special appeals (REsp 2,133,933/DF and REsp 2,025,997/DF) designated as representative cases.
In ruling on the matter, the STJ must determine whether the original wording of the Kandir Law—before the amendments introduced by LC 190/2022—provided sufficient legal grounds for states to require DIFAL in interstate transactions involving end consumers who are ICMS taxpayers. The decision will significantly impact thousands of lawsuits, as well as potential refund claims by taxpayers who paid the tax based on state regulations that may be deemed unlawful.
Given the substantial financial implications, it is important for taxpayers who paid DIFAL as end consumers before LC 190/2022 took effect to seek judicial relief to preserve their right to a potential tax refund—especially considering that, if the STJ rules in favor of taxpayers, it may apply temporal modulation, limiting ICMS refunds to those who filed lawsuits before the start of the judgment of the representative appeals.
The Tax Law Practice Group of Marins Bertoldi Advogados is closely monitoring developments in this matter and remains available to answer questions, provide strategic guidance, and assist companies regarding the legal and financial impacts related to DIFAL collection.
