Dosimetria das sanções tributárias: possibilidade e critérios

Abstract

The recognized complexity of the Brazilian tax law generates constant disputes between the tax authorities and taxpayers, which has as one of its consequences the numerous applications of tax penalties because of noncompliance with the main ancillary obligations. However, the application of these penalties occurs in a rigid and mechanical manner, without due observance of the principles of individualization of penalties and culpability. In this sense, this dissertation aims to answer the questions of the problem-theme: does the Brazilian legal system allow and require the dosimetry of tax penalties? If so, what criteria can be adopted to aggravate or mitigate penalties? The study focuses on domestic law, especially federal legislation. The methodology used to achieve the objectives and reach the conclusions was legislative, doctrinal, and jurisprudential research. The nature of the research was experimental, given the existence of previously defined hypotheses, and belongs to the theoretical-legal branch, of hypothetical-deductive reasoning. The first conclusion reached was that the Brazilian legal system not only admits but also requires the gradation of tax penalties. The Federal Constitution established legal garantism, which confers the greatest possible effectiveness to fundamental rights, and limits state punitive powers, based on principles such as the individualization of penalties and culpability. Moreover, the National Tax Code privileges in several provisions the subjective aspects of the offender, such as articles 100, 108, 112, 136 and 172, among which equity plays a fundamental role in filling gaps regarding tax penalties. In addition, the forgotten Federal Ordinary Law no. 4,502/64 grants legal practitioners the power to determine the appropriate amount of penalty, given certain circumstances. The Brazilian Supreme Court has already recognized the possibility of the Judiciary reducing excessive penalties. The second conclusion was that there is a non-exhaustive list of criteria that may influence the gradation of penalties, such as proportionality, reasonableness, culpability, recidivism, harmfulness, and the economic capacity of the offender.