Imposto de Renda no Brasil, segundo os propósitos do constituinte e os comprometimentos do STF: elementos do conceito e seus resíduos tipológicos

Abstract

This paper aims to define “income” in Brazil, based on the application of Ronald Dworkin’s theory. Income concepts have been constructed in the country for decades by the doctrine. However, the variation in the results obtained causes legal uncertainty for taxpayers. In general, income concepts that require more elements for their configuration are created by authors who attribute more weight to principles associated with the principle of legal certainty, and income concepts that require less elements for their configuration are created by authors who attribute more weight to principles associated with the principle of the ability to contribute. However, the way in which many authors recognize and attribute weight to the principles seems to be related to the personal ideal of justice of each of them, especially in the face of an analytical constitutional text such as the brazilian constitution. Therefore, through a quantitative and qualitative methodology, this paper analyzed the purposes of the constituent and the commitments of the STF to the principles of legal certainty, the ability to contribute and the concept of income. The conclusion is that income in Brazil is a mixed concept, which has a rigidly defined concept, which has been modified over time to include new elements, and typological residues, which are relatively undetermined and subject to consideration of the weight of principles, such as those of the contributory capacity and legal certainty. The concept of current income corresponds to the real increase in assets, throughout the continuity of the company, even though the public entity can define the moments of payments. The typological residue of income, where by virtue of the action of the principles of contributory capacity and legal certainty, the definition of income has gradability, flexibility of the legal structure and openness to reality, in turn, requires the element “power of realization” or “effective realization”, depending on the circumstances.