Princípio da neutralidade da tributação no IBS e na CBS: definição, conteúdo e eficácia

Abstract

Constitutional Amendment n. 132/2023 introduced Article 156-A into the Constitution. The provision establishes that a complementary law shall institute the IBS, whose competence is shared by the States, the Federal District, and the Municipalities. Paragraph 1 thereof provides that the tax shall be governed by the principle of neutrality, which also governs the CBS by virtue of Article 195, paragraph 16, of the Constitution. Pursuant to Article 2 of Complementary Law n. 214/2025, the purpose of the principle of neutrality is to prevent the IBS and the CBS from distorting consumption decisions and the organization of economic activity. Although this definition has promoted a concretization of the concept of neutrality, which is indeterminate, it is insufficient, as it contains other indeterminate concepts, such as “distort” and “decisions,” which hinder rather than assist the understanding of the aims pursued through the realization of that principle. In order to confer operational effectiveness upon it, the definition set forth in Article 2 of the complementary law depends on the conceptual specification of the principle of neutrality. This reconstructive operation of meaning must attribute significance to the principle through propositions not textually formulated. By employing the analytical-functional method and the method of comparative law, the present work seeks, as its immediate objective, to determine the definition, content, and effectiveness of the principle in tax law on the basis of an analytical examination of the norm, so as to construct the concept, foundation, purposes, means, normative function, and normative force of that principle. Its intermediate objective is to ensure that its application is more secure, consistent, and stable. The work argues that the principle of neutrality aims, on the one hand, at the realization of the ideal of market freedom, which, specifically in the context of consumption taxation, means the relief of taxable persons, and has a substantive dimension, related to non-cumulativity and refunds, and an instrumental dimension, related to the instrumental powers available to the tax administration for the administration, supervision, and effective collection of public revenues. On the other hand, the principle of neutrality aims at the realization of the ideal of market equality, which, specifically in the context of consumption taxation, means the equivalence of the tax burden. From the perspective of this ideal of equivalence, neutrality has a structural dimension and a functional dimension. It is argued that the structural dimension of the principle is realized through the partial ideals of universality, generality, breadth, and uniformity. As regards the functional dimension, the principle of neutrality is realized through harmonization and through the calibration of the legal system so that it approximates the ideal of structural equivalence.