Do erro interpretativo nas zonas de incerteza objetiva e seus efeitos no direito tributário sancionador

Abstract

This paper is dedicated to analyzing the effects of interpretative error in tax penalty law, when there is a zone (or condition) of objective doubt. In the light of the general principles of repression and considering the potential indetermination of legal rules, due to the open texture of language, we intend to answer the following questions: (i) what are the effects of a interpretative error when the taxpayer is in a zone of objective doubt?; (ii) is it lawful to punish a taxpayer who has underpaid a tax, failed to pay a tax, or failed to comply with a certain ancillary obligation, when the taxpayer is in a zone of objective doubt?; (iii) can an exclusion of culpability be invoked in cases which the taxpayer is protected by a reasonable interpretation of the tax rule within a zone of objective doubt? This way, considering the potential indetermination of language, which allows the taxpayer to extract two or more reasonable interpretations from legal rules; considering that self-assessment has delegated the interpretative function to taxpayers; considering that the principle of culpability applies to tax law; our hypothesis is that if the tax authorities diverge from the interpretation given by the taxpayer to the tax rule and there is an unpaid or underpaid tax or non-compliance with an ancillary obligation as a result of this interpretation, the tax authorities will be able to charge the tax (plus late payment interest and monetary correction), but will not be able to impose tax penalties for non-compliance of the tax rule. In these cases, the taxpayer is in mistake of law, which excludes the culpability, as he absence potential awareness of illegality. To answer the questions raised above, we have structured our reasoning into three chapters. In the first chapter, we will analyze the contributions of the philosophy of language to the understanding of law. We will show how the open texture of language influences the construction of legal norms and how this interferes with their interpretation. In the second chapter, we will analyze the evolution of the concept of culpability in criminal law and the way in which this principle is received by tax law. Subsequently, in the three chapter, we will analyze the effects of interpretative error on tax law. To do this, we will first analyze how interpretative error is treated in some foreign legal systems. Later, we will analyze the grounds on which this treatment is based and then we will present our proposal for the Brazilian reality. Finally, we will try to delimit what is proposed, to objectify what should be understood by reasonable interpretation. Finally, we will conclude that: (i) one of the effects of interpretative error should be the exclusion of the taxpayer's guilt due to the absence of potential awareness of illegality; (ii) it is not lawful to punish a taxpayer who is in a zone of objective uncertainty, since in such a situation he is in mistake of law; and (iii) considering that the Brazilian Constitution is a guarantor Constitution, the guilt must guide all the state's sanctioning powers and, therefore, it is completely viable to invoke an exclusion of culpability when the taxpayer is in a zone of objective uncertainty.