Transação tributária: uma análise da renúncia de receitas à luz do ordenamento jurídico brasileiro

Abstract

Law nº 13.988/2020, which consolidated and allowed the use of tax transactions in Brazil, represented a milestone in the relationship between the Executive Branch and the taxpayers, through the Tax Administration. This change was only possible as a result of a paradigm shift that has occurred around the world and now in Brazil, in which other means and procedures for solving conflicts besides the judicial route are considered. This work addresses the relevance of tax transactions in the Brazilian legal system and the need for its encouragement, as well as other effective mechanisms that reduce the judicial framework. However, due to its recent nature and the considerable power granted to the Executive Branch, several questions arise. The research problem is to determine whether the tax transaction amounts to a revenue waiver and should comply with the Fiscal Responsibility Law. For this purpose, theoretical research was carried out which demonstrated the non-existence of an objective concept of tax benefits that cause revenue waivers in the Brazilian legal system. This absence makes it necessary for the Court of Auditors to intervene on the performance of public authorities on a constant basis, as managers end up using this gap to institute disguised benefits from other institutes, with the aim of ruling out the application of the LRF. The concept of tax transaction was also discussed and, when analyzing jurisprudence and doctrine, a conceptual confusion perpetrated by the public authorities in relation to its legal nature was found. A crucial point observed at the end of the research, when analyzing each modality in light of the LRF, was the absence of reciprocal concessions in adhesion transactions, as well as the lack of res dubia in transactions involving irrecoverable credits. These gaps give rise to discussions concerning the legality of these instruments, which can be questioned at any time.