A taxatividade do art. 149, § 2º, III, “A” da CR/1988: bases constitucionais das CIDES e contribuições sociais não são e não podem ser meramente exemplificativas

Abstract

This dissertation discusses the appropriate interpretation of Article 149, § 2º, III, “a” of the Constitution of the Republic, included by Constitutional Amendment No. 33/2001, which provides specific calculation bases for social contributions and contributions for intervention in the economic domain. These bases are: (i) gross revenue from goods and services; (ii) gross revenue from all sources; (iii) the value of the operation; or (iv) specifically for imports, the customs value. The main investigation is whether the list of calculation bases provided therein could be considered as exemplary – thus allowing the ordinary legislator to adopt a calculation base not listed – or if it necessarily needs to be taken as exhaustive – meaning that the ordinary legislator is prohibited from adopting a calculation base different from those expressly listed. The research idea arose from the judgment by the Plenary of the Federal Supreme Court of two themes of general repercussion, theme No. 325 and theme No. 495, assessed in the records of extraordinary appeal No. 603.624/SC and extraordinary appeal No. 630.898/RS, respectively. In both precedents, the Federal Supreme Court decided, by majority vote, that a contribution for intervention in the economic domain levied on the payroll – a calculation base not provided for in the constitutional list – was constitutional. The main foundation of the winning current was precisely the non-exhaustiveness of the constitutional list of calculation bases for social contributions and contributions for intervention in the economic domain, which would be merely exemplary, thus allowing the ordinary legislator to adopt an unlisted materiality. However, this legal conclusion, despite being corroborated by part of the specialized doctrine, seemed incompatible with the content, scope, and function of the constitutional rules of tax jurisdiction, as historically provided for in the successive Constitutions that were in force in Brazil, as well as from the understanding given by the jurisprudence of the Federal Supreme Court and by national doctrine to the legal-positive institute of tax jurisdiction. Thus, theoretical research was elaborated, in a monographic character and of an exploratory nature, based on the legal-dogmatic approach to the proposed problem-theme. The provisions of the Constitution of the Republic on the distribution of tax jurisdiction were approached from the analytical-functional method, with specific investigation of their content and function. To this end, it remained firm to the premise that the judgment, by the Federal Supreme Court, of a certain legal controversy, instead of undermining the doctrinal work, inaugurates a new field of investigation, becoming its duty to evaluate the correctness and the incorrectness of the jurisprudential manifestation, especially in a true Rule of Law. In the end, a reasoned conclusion was exposed, in the sense that the provisions of the Constitution of the Republic that nominally listed calculation bases for social contributions and contributions for intervention in the economic domain cannot be interpreted as exemplary, being, necessarily, exhaustive provisions.