On October 21, 2025, the Supreme Federal Court (STF) concluded the judgment of Extraordinary Appeal No. 1,426,271 – Theme 1266/STF (General Repercussion Theme), establishing that the Differential Rate (DIFAL) of ICMS is not due for the fiscal year 2022 for taxpayers who filed lawsuits until November 2023 and did not pay the tax.
The thesis refers to the application of the annual and 90-day previous notice rules for the collection of ICMS DIFAL resulting from interstate operations involving final consumers who are not ICMS taxpayers, after the entry into force of Complementary Law 190/2022.
The decision, by a score of 9–2, modulated the effects of the collection and consolidates one of the most relevant tax matters of recent years.

• 
  

  THESIS TO BE ESTABLISHED IN THEME 1266/STF:
  By majority, the STF established the following thesis:
  “I – Article 3 of Complementary Law 190/2022 is constitutional, establishing a vacatio legis period corresponding to the 90-day previous notice rule provided for in Article 150, III, ‘c’, of the Federal Constitution.
  II – State laws enacted after Constitutional Amendment 87/2015 and before the entry into force of Complementary Law 190/2022, aimed at implementing the collection of the ICMS Differential Rate – DIFAL on transactions and services destined for final consumers who are not taxpayers of the tax, are valid, but only produce effects as of the entry into force of LC 190/2022.
  III – Taxpayers who filed lawsuits (modulation of effects) – Exclusively for the fiscal year 2022, the collection of DIFAL is not permitted regarding taxpayers who filed lawsuits challenging such collection until the judgment date of ADI 7066 (11/29/2023), and who did not pay the tax in that year.”

  
  

Reporting Justice Alexandre de Moraes voted in favor of the validity of DIFAL collection from April 4, 2022, a date that complies only with the 90-day previous notice requirement established under Article 150, III, “c” of the Federal Constitution, considering that Complementary Law 190/2022 did not create or increase taxes, but only defined the revenue allocation among the States.
However, the prevailing position was the proposal by Justice Flávio Dino to modulate the effects, according to which the DIFAL may not be collected from taxpayers who filed lawsuits until November 29, 2023 and did not pay the tax in 2022, recognizing the good-faith of such taxpayers in light of administrative and judicial interpretations indicating that the collection would only apply from 2023.

• 
  

  IMPACTS OF THE STF DECISION:
  The STF decision ends the legal uncertainty introduced by LC 190/2022, which regulated DIFAL ICMS after the Court declared, in 2021, the unconstitutionality of its collection without a complementary law.
  Impacts for taxpayers:
  • Companies that filed lawsuits until 11/29/2023 are exempt from paying DIFAL ICMS for 2022.
  The approved modulation represents a balance between legal certainty and public revenue protection, avoiding penalties for taxpayers who acted according to the prevailing interpretation before the STF settled the matter.
  The decision closes an important chapter in the dispute over DIFAL, providing a definitive and stable interpretation to a matter that generated intense litigation between taxpayers and state tax authorities.
  The Dupont Spiller Fadanelli Advogados team is monitoring the matter and remains available to clarify any questions on the subject.