The 1st Panel of the Superior Court of Justice (STJ) will establish a binding precedent regarding the exclusion of ICMS-DIFAL from the calculation base of PIS and COFINS contributions through the judgment of Repetitive Theme No. 1372.

Until the Theme is ruled, the STJ’s 1st Panel has ordered the suspension of appeals in second instance and before the STJ that deal with the same issue.

The Public Law Panels of the STJ have already been ruling in favor of taxpayers, stating that ICMS-DIFAL should not be included in the calculation base of PIS and COFINS.

However, once the precedent is set under the Repetitive Theme procedure, all cases related to the matter (judicial or administrative), due to the binding effect of the decision, must be judged in accordance with the thesis to be established by the STJ in Theme 1372.

In January 2025, the PGFN (National Treasury Attorney’s Office) waived the requirement for prosecutors to appeal decisions recognizing taxpayers’ right to exclude ICMS-DIFAL, pursuant to Opinion SEI No. 71/2025, which states there is no normative distinction between ICMS and ICMS-DIFAL.

This thesis may provide significant financial recovery for companies subject to ICMS-DIFAL. Below is a brief summary of the thesis and the credit involved:

Summary of the thesis: DIFAL is the difference between the ICMS rates of the sender and the recipient in interstate transactions.
As there is no normative distinction between ICMS (internal operations) and ICMS-DIFAL, since both are included in the product’s value and their amounts do not enter the company’s cash as new revenue, being destined for the public treasury, it is possible to extend to ICMS-DIFAL the decision issued by the STF in Theme 69, allowing these amounts to receive the same legal treatment as ICMS (internal operations) in the case of interstate transactions for final consumers who are not ICMS taxpayers.

Credit that may be recovered: Exclusion of ICMS-DIFAL from the PIS and COFINS debt for the last five (5) years, updated by SELIC.

It is important at this time that taxpayers who have not yet filed a lawsuit evaluate doing so, given the possibility of modulation of effects, which is common in repetitive appeal procedures (STJ) and general repercussion cases (STF), potentially limiting taxpayers’ requests for compensation/refund of amounts.

The team at Dupont Spiller Fadanelli Advogados is monitoring the matter and remains fully available to clarify any doubts on the subject.