Normas tributárias na execução de políticas públicas: uma opção pelo Estado Democrático de Direito

Abstract

The research developed was proposed to perform an analysis of the Brazilian legal system in order to recognize a solution to the conflict between the tax laws with regulatory function and the constitutional tax principles. To achieve this purpose, the work began with the identification of the tax as a social instrument to meet a tax function as a mechanism for mobilizing resources for the public coffers, and a regulatory function as a resource for promoting public policies by induction behavior. Following was developed the foundation and content of constitutional tax rules with regulatory function, recognizing the standards of competence, immunities and tax principles. The work continued with an investigation of the possibility and restrictions that ordinary laws adopt tax rules with inducer character, then reaching the central point of conflict between constitutional principles and ordinary tax laws with regulatory function. The development of the possibilities of settlement of the conflict took place from the perspective of two theoretical framework, the postulate of proportionality in the theory of Robert Alexy and the recognition of law as integrity in the work of Ronald Dworkin. With the application of a methodology for legal and interpretative study of the theoretical frameworks, the grounds that legitimate the limits of the constitutional power to create tax and the establishment of regulatory tax, it was found that the response submitted by the law as integrity it is more appropriate to the context of the democratic state of law, because considers the need to overcome the interpretation as a purely syntactic and semantic processing, in a plural society in which the language is constitutive elements of beings. Finally, it was conducted an analysis of judicial decisions from the perspective of both frameworks studied, aiming to demonstrate the difference between the proposed paths.