Discricionariedade administrativa em matéria tributária: a relação fisco-contribuinte a partir do estudo da transação tributária

Abstract

Administrative discretion is one of the most important topics in Public Law, as it is part of the study of administrative acts. On the other hand, as commanded for in arts. 3 and 142, both of the National Tax Code (CTN), the linked activity of the administration regarding the collection of the tax allows us to conclude that the regime of administrative acts not only composes the concept of tax itself and initiates the tax relationship, but permeates its entire development and, as a consequence, its subsequent conclusion. In this sense, starting from the traditional classification of administrative acts between linking and discretionary, the theme of this research is precisely the study of administrative discretion in tax matters, especially with regard to research on the extent and limits of administrative discretion in tax matters, especially in tax transactions at the federal level, in light of Law No. 13.988/2020, regulating art.171 of the CTN. Said law identifies the modalities of tax transactions, the commitments and duties reinforced by taxpayers, as well as requirements and conditions for permission to enter into it. The present work, therefore, intends to research the possibility of the existence of administrative discretion in the suspension of tax transactions, as well as the extensions and limits of administrative discretion in each type of tax taxation regulated by Law No. 13,988/2020, in addition to the mode control of such acts by the Judiciary. The present work starts of a specific discussion on the administrative doctrine regarding discretion, in particular the discussion regarding the emergence or not of administrative discretion in the presence of indeterminate legal concepts. Afterwards, intends to explore the relationship between administrative discretion and Tax Law, a branch in which legality is reinforced in the Constitution. Then, enter the study of tax taxation, through the analysis of art.171 of the CTN, as well as the regime given to this institute by Law No. 13,988/2020, in addition to its regulation carried out by other infralegal normative statues,so that, at the finally, seek to identify the existence, extent and limits of discretionary action by the Public Administration in the various types of tax taxation regulated by the governing law.