Extrafiscalidade: interpretação, aplicação e integração

Abstract

The paper analyzes decisions issued by the Federal Supreme Court regarding the interpretation and application of tax rules for extrafiscal purposes and then proposes interpretive solutions for the problem situations found in the research. It starts with the structuring of a legal definition of extrafiscality, supported by specific bibliographic productions related to the theme, to list and present elements inherent to the phenomenon, as well as its normative requirements for validity and effectiveness. Based on this, the criteria applied by the Federal Supreme Court for the solution of formal and material issues related to the integration of the tax rule with extrafiscal purpose into the legal system are systematized. Afterwards, the main decision-making problems related to the absence of justification and identification of the extrafiscal purpose, methodological insufficiency of measuring the correlation between adopted tax purposes and instruments, and inertia regarding the filling of gaps arising from the legislator's partial omission are critically discussed. For each of the problems mentioned, interpretative techniques related to incomplete or not provided solutions by the Judiciary Branch in the documentary research carried out are presented. In this sense, without exhausting or stiffing the interpreter's activity, the use of linguistic and systematic argumentative methods is suggested for the identification of tax rules with explicit purposes; and for the recognition of tax rules with implicit purposes, the use of the teleological method. To measure the relationship between purpose and adopted extrafiscal measure, it is justified to employ the techniques of proportionality, reasonableness and prohibition of excess. Finally, after the outline of what is understood by literal interpretation and the normative content of art. 111 of the National Tax Code, it is proposed to fill in the gaps caused by the legislator's partial omission through additive decisions with the limited and restricted use of analogical and a fortiori arguments, whose purpose is, precisely, to avoid repeated violations of the principle of equality by the republican powers.