Poder tributário instrumental: delimitação da competência e dos limites para o seu exercício

Abstract

This thesis proposes to set out the competence for the institution and requirement of instrumental tax obligations, with a focus on the limits for exercise of this power. The hypothesis that is intended to be investigated is that the exercise of Instrumental Tax Power is subject to the limits imposed by the principles of legality, efficiency, practicability, reasonableness, proportionality, and equality. It analyzes the relevance of tax collection for funding of the State, including the viability of private property, and the implementation of fundamental rights and guarantees. It studies the duty of collaboration between citizens, and companies, and the Public Administration, as well as the the taxpayer’s capacity to collaborate, as a requirement for the legitimacy of the demand for instrumental obligations. It investigates the legal nature of the so-called ancillary obligations within the legislation, so as to either confirm or invalidate its obligatory, ancillary, and tax natures. It analyzes the principle of legality applicable to Instrumental Tax Law and the limits to the exercise of regulatory power by the Executive Branch, with investigation of the types of regulations allowed in Brazil, and the parameters for the exercise of procedural discretion and technical discretion, and also for the activities of interpretation and facilitation of the understanding of the legislation. It studies the principles of efficiency, practicability, reasonableness, proportionality, and equality, and the way in which they apply to Instrumental Tax Law. The conclusions of the study are that the exercise of instrumental tax jurisdiction is only legitimate if the following requirements are observed: (i) presence of factual assumptions capable of justifying the imposition of the instrumental obligation – namely, the relevance of the obligation for tax collection or inspection, and the ability of the taxpayer to comply with it, without excessive sacrifice; (ii) compliance with the principle of legality, which requires new obligations to be established by law, and whose regulation is allowed by infra-legal acts, which may have as their object the exercise of procedural discretion, technical discretion, interpretation of the law, or facilitation of the understanding of the law; (iii) respect for the principle of administrative efficiency (the obligation must have the potential to generate more benefits for the community than the sum of the costs that will be imposed on the Public Administration and individuals for its fulfilment); (iv) observance of the principle of practicability (the obligation must be executable and must be the least onerous, and least complex alternative, to achieve the intended purposes of its institution); (v) compliance with the principles of reasonableness and proportionality, and, (vi) respect for the principle of equality, which prevents the granting of disparate treatment to taxable persons in similar situations.