Uma proposta de macroprocesso do crédito tributário em uma abordagem institucional: deferência aos órgãos-agência e o reposicionamento da regulação tributária para um sistema preventivo de conflitos

Abstract

This work is a proposal for a macro-process of tax credit with an emphasis on tax regulation. The current model, centered on a "litigation" of individual solutions, was not designed to standardize the interpretation and application of tax legislation; in a way that promotes equal treatment to all taxpayers. As currently practiced, the activity of regulation and standardization only raises the "degree of litigation". Normative administrative acts produce distortions, inequities and insecurity in the productive market and for other taxpayers. They are inexhaustible sources of controversy, which has led to a high number of unnecessary administrative and court lawsuits. We intend that our tax regulation paradigm, with the adoption of mechanisms of democratic legitimacy of its interpretative decisions, will raise the degree of conformity in the tax-taxpayer relationship. Before dealing with institutional design, we had to overcome some relevant precedent issues. As our proposal values the decision-making competence of executive agency bodies, we needed to justify the paradigm in view of the jurisdictional hegemony of the Judiciary, who would have the "last word" on all issues. We start with theories of decision and institutional behavior. We understand that we are all only reasonably rational when we make choices and make our decisions. And it is no different in court decisions. All are subject to heuristics, bias, ideological tendencies, sociological aspects, prejudices, constraints, interests and ripple effects. The relativization of rationality calls into question the alleged neutrality and impartiality announced and defended by the courts. These attributes are present only in degrees, not at all. Decisions are biased in proportion to the influence on the decisionmaker of these many non-normative aspects, typical of the human condition and its natural weaknesses. Having overcome this premise, we arrived at our proposal for a macro-process of tax credit, characterized by the appreciation of decision-making deference to its agency bodies. We understand that the difference in degree in the attributes of neutrality and impartiality does not justify that the generalist courts are the "last word" for everything. For complex technical issues, rich in tax legislation, it would be better to rely on the expertise of these institutions.