In this Tax Law newsletter, you will read:
- The Supreme Court closes the debate on DIFAL
- The Supreme Court confirms the absence of general repercussion in the debate over the inclusion of PIS/COFINS in the ICMS tax base
- STJ rejects the modulation of effects in Theme 1.390
- Justice Nunes Marques rejects the ADC on debates over the PIS/COFINS tax base
- STJ allows the use of the “teimosinha” function of SISBAJUD in tax enforcement proceedings – Theme 1.325
1. The Supreme Court closes the debate on DIFAL
On April 29, 2025, the ruling handed down by the Brazilian Supreme Court (STF) in Extraordinary Appeal No. 1,426,271 (Theme 1,266) became final and unappealable. The case addressed the application of the annual and ninety-day prior notice rules to the collection of ICMS-DIFAL arising from interstate transactions destined to end consumers who are not taxpayers of the tax, following the enactment of Supplementary Law No. 190/2022.
By majority vote, the STF established a binding precedent upholding the constitutionality of Article 3 of LC 190/2022, which sets a minimum 90-day period between the law’s publication and the commencement of collection (ninety-day prior), and the validity of state laws enacted between Constitutional Amendment No. 87/2015 and LC 190/2022, with effects taking place from the date LC 190/2022 entered into force.
The STF modulated the effects of the decision, providing that DIFAL is not collectible for the fiscal year 2022 with respect to taxpayers who filed a lawsuit by November 29, 2023 and refrained from remitting the tax during that period.
In ruling on motions for clarification the Court clarified that this protection extends to all taxpayers who filed suit within the deadline, regardless of whether the non-payment resulted from a preliminary injunction or a judicial deposit, which implicitly confirms that amounts held in judicial escrow are not deemed payments and are therefore covered by the modulation.
2. The Supreme Court confirms the absence of general repercussion in the debate over the inclusion of PIS/COFINS in the ICMS tax base
On April 29, 2026, the final and unappealable status of Theme 1,446 of the Brazilian Supreme Court (STF) was certified, through which the Court unanimously recognized that the controversy over the inclusion of PIS and COFINS in the ICMS tax base does not carry a constitutional character, dismissing the general repercussion of the matter.
The Superior Court of Justice (STJ) had already ruled on Theme 1,223, through which it held that the inclusion of PIS and COFINS in the ICMS tax base is lawful, so that the rulings of both higher courts consolidate a position unfavorable to taxpayers on the matter.
3. STJ rejects the modulation of effects in Theme 1.390
The 1st Panel of the Superior Court of Justice rejected the request for modulation of effects filed by taxpayers in the motions for clarification submitted in Theme 1,390, which addresses the tax base of parafiscal contributions directed to third-party entities, such as Education Salary Contribution, INCRA, SEST, SENAR, SENAT, DPC, FAER, SESCOOP, APEX-Brasil, ABDI and SEBRAE.
The taxpayers sought modulation along the same lines applied in Theme 1,079, which also removed the cap of 20 minimum wages for contributions to SESI, SENAI, SESC and SENAC, and whose modulation is currently being challenged by the Federal Revenue Authority through divergence motions pending before the Special Panel.
The request was rejected because, according to the Justices, unlike what occurred in Theme 1,079, there was no consolidated history of decisions favorable to taxpayers specifically regarding the contributions covered by Theme 1,390 that would justify the creation of a temporal protection threshold. The motions were ruled upon collectively, without floor debate.
4. Justice Nunes Marques rejects the ADC on debates over the PIS/COFINS tax base
Justice Nunes Marques of the Brazilian Supreme Court denied further proceedings in ADC 98, filed by the federal government with the aim of limiting the advancement of the so-called “spin-off theses,” derived from the exclusion of ICMS from the PIS and COFINS tax base, as established in Theme 69 of general repercussion.
The action sought a declaration of constitutionality of the inclusion, in the PIS and COFINS tax base, of ISS, ICMS presumed credits and the PIS/COFINS contributions themselves, controversies currently under review in Themes 118, 843 and 1,067 of general repercussion, respectively.
The reporting Justice held that the government failed to demonstrate the existence of a relevant judicial controversy over the constitutionality of the PIS and COFINS legislation, an indispensable requirement for the admissibility of a declaratory action of constitutionality.
According to the reporting Justice, the cases submitted discuss specific situations arising from Theme 69, and not the validity of the laws themselves. The Justice noted, however, that the decision does not remove the presumption of constitutionality of the challenged laws.
As this is a single-Justice ruling, it is still subject to appeal.
5. STJ allows the use of the “teimosinha” function of SISBAJUD in tax enforcement proceedings – Theme 1.325
The 1st Panel of the Superior Court of Justice unanimously established a binding precedent under the repetitive appeals procedure in Theme 1,325, allowing the use of the “teimosinha” (persistent search) function of the Judiciary Asset Search System (Sisbajud) in tax enforcement proceedings. The tool automatically repeats account freeze orders against the debtor until sufficient funds are found to settle the debt.
The ruling has not yet been published. The following legal theses were unanimously approved under repetitive theme 1,325:
1. The automatic reiteration of freeze orders via SISBAJUD is a legitimate measure aimed at the effectiveness of enforcement proceedings and compatible with the procedural legal order, and it is incumbent upon the judgment debtor to demonstrate impediments to the encumbrance or the existence of an equally effective and less burdensome enforcement method.
2. After the triangulation of the procedural relationship, the denial of the measure requires concrete reasoning, and refusals based on generic arguments are not permitted.
