O aspecto procedimental como elemento da norma jurídica tributária e seus reflexos na formação do título executivo

Abstract

The purpose of the introduction is to explain the system used to prepare the work, to explain the objectives and to inform the methodology. This is an overview of the subject, obeying previously established rules, demonstrating the existence of the originality of the study by proposing a new classification of the aspects or criteria of the tax rule based on the development of the administrative tax proceeding and its effectson the valid formation of the executive instrument. Chapter One is the essence of the thesis. It demonstrates that the administrative tax proceeding, arising from the tax liability, is a logical consequence of the application of the respective tax rule, and is one of its elements, under penalty of invalidating the tax liability and, in consequence, the formation of the executive instrument. Based on the general theory of the legal rule, and explaining the theoretical background that was adopted, namely the hypothetical rule according to the positivism of Hans Kelsen, the study developed the formation of the legal relationship in the structure of the tax rule. It presents a new criterion or aspect of the tax rule, found in the normative consequent: the procedural aspect. There is also a brief digression about the other criteria, with an emphasis on the subjective aspect of the classification of taxpayers. The Chapter called "Administrative Tax Proceeding" develops the concepts of procedure and proceeding, to differentiate the legal nature of each, thus permitting theanalysis of the administrative proceeding arising from the tax activity and belonging to the legal rule. Principles are the guidelines of the prosecution of administrative and judicial proceedings. It is essential to understand them in order to understand this legal doctrine and to show that, only by means of this procedural element of the tax rule, it ispossible to protect the interests of taxpayers. Then, the principal aspects of each stage of this proceeding are characterized, from the administrative act that justified the institution of the proceeding to the final decision to be entered by the authority with jurisdiction to pass judgment upon the subject matter of the dispute. Emphasis is laid onthe full defense of taxpayers, by means of an objection (defense), or by filing complaints or administrative appeals, and the legitimate right to have an evidentiary stage. Chapter Three establishes the final stages for the formation of the tax executive instrument, in the scope of the administrative tax proceeding, which has many requisites of validity, usually not fulfilled by the Government. This document has economiccontents, it is issued by the competent authority, which must respect specific rules and must avoid harming the taxpayers. The administrative tax proceeding, as an indispensable presupposition for the application of the tax rule, is a primary guarantee for taxpayers. Additionally, some relevant characteristics of the principal judicial remedies that permit discussing the tax relationship and the respective executiveinstrument must be analyzed. The conclusion is a summary of the work. It stresses the principal aspects of the subject and explains, in a few words, the fundamental ideas verified during the research.The support of the thesis is developed by means of a new classification of the tax rule, which could be called micro-theses, that is, the new propositions and interpretations of the subjects related to the formation of the executive instrument, with an emphasis on the thesis that was presented.