Boa-fé e direito tributário: a constitucionalização das relações entre administração tributária e contribuintes

Abstract

This paper focuses on the good faith in tax law, with the thread of the process of constitutionalization of the relationship between tax administration and taxpayers. In this way, are analyzed both the general outlines of the process of constitutionalization of the law and its consequences for the tax administration, highlighting how this movement interacts with the notion of good faith. Whether by justifying the use o good faith principle or changing the dynamics of the relationship between taxpayers and tax administration in order to make your application more than a possibility, a real necessity. In the specific field of tax law, the text proposes a subdivision of the principle of good faith in three dimensions: good faith as the principle of protection of legitimate expectations, good faith as a principle of cooperation and good faith as fairness. The subdivision intend to highlight other aspects of the principle that, in general, are less explored, and to provides assistance in the hermeneutic process by giving parameters that help in legal argumentation and practical rationality, what is very important because of the open texture of the good faith principle. In the field of practical application in tax law, the text presents some specific issues where it is believed that the use of good faith can play a role, including: application of penalties, tax installments, tax planning , interpretation of treaties to avoid double taxation of income tax, like others . In the end, there is a brief overview of the main criticisms of the application of the good faith that, largely, are the same directed to a more open form of law application that arises from Neoconstitutionalismo. In response, the text provides two parameters: the application of good faith only to hard cases, because of a preference prima facie for the rules, and the application of the theories of legal argumentation as a way of allowing a better external control of the decisions that use this principle.