The Second Panel of the Superior Court of Justice (STJ)¹ ruled on Special Appeal No. 2.133.516/PR, discussing the inclusion of ICMS-DIFAL² in the calculation bases of PIS and COFINS contributions³, with Justice Afrânio Vilela as rapporteur.

In his vote, the Justice maintained that ICMS-DIFAL does not constitute company revenue or turnover, but rather serves as a mechanism for revenue sharing among federal entities – making it legally distinct from regular ICMS⁴. He also emphasized that although the DIFAL amount is not always highlighted on invoices, it can be fully identified, calculated, and recorded specifically in tax documents, reinforcing its nature as a mandatory transfer and preventing its inclusion in the contribution base.

The Court also accepted the modulation of effects based on Theme 69 of the Supreme Federal Court (STF)⁵, limiting the decision’s scope to the temporal framework set by the Supreme Court on July 15, 2021. This recognized the right to exclusion only from this date forward, limiting the recovery of previously paid amounts while ensuring predictability for future cases.

Finally, with the issuance of Opinion SEI No. 71/2025/MF by the Attorney General’s Office of the National Treasury (PGFN)⁶ on January 29, 2025, stating that no further appeals would be filed on the matter, Justice Afrânio suggested that the Second Panel should apply this understanding to identical cases still under analysis.

This decision strengthens the taxpayer-favorable interpretation and directly impacts companies conducting interstate operations with non-taxpayer end consumers, especially in retail and e-commerce, while promoting judicial uniformity and reducing tax liabilities throughout the Brazilian judiciary.

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Notes:

¹ STJ (Superior Tribunal de Justiça): Brazil’s highest court for non-constitutional matters

² ICMS-DIFAL: Tax difference between interstate and internal ICMS rates on sales to end consumers

³ PIS/COFINS: Federal social contributions levied on company revenues

⁴ ICMS: State Value-Added Tax on Goods and Services, Brazil’s main state-level tax

⁵ STF (Supremo Tribunal Federal): Brazil’s Supreme Federal Court

⁶ PGFN: Federal agency responsible for representing the National Treasury in tax matters