O dano da sonegação fiscal à luz do bem jurídico na Constituição de 1988

Abstract

The tax damage caused by the crime of tax evasion in art. 1 of Law 8,137/1990 is the reduction or suppression of a tax, or social contribution and any accessory, by means of acts, whether commissive or omissive, of material or ideological falsehoods, as set out in the sections of the law. The aim of the research is to delimit the tax damage of Article 1 of Law 8,137/1990 in the light of the 1988 Constitution. In addition to the meanings of tax and social contribution, however, the exegesis of the expression ‘any accessory’ is the most sensitive point for assigning the meaning with criminal dignity. In the Social and Democratic State of Law, in which the primacy of freedom and social justice prevails, the legal good with constitutional relevance is the cornerstone for limiting the state’s power to punish and for avoiding the arbitrariness of the interpreter of the criminal law. The strict constitutional conception of the legal good requires a relationship of mutual reference between the constitutional axiological-legal order and the legal order of criminally protected goods. Tax collection is thus the legal good protected in Article 1 of Law 8,137/1990, with essential characteristics because it is a concrete, determined value with constitutional relevance. The critical function of the legal good is fundamental to the axiological-legal analysis of the element ‘any accessory’. The research is of a theoretical nature, with an exploratory, bibliographical bias and was carried out by means of a qualitative study of scientific and normative literary elements. The work discussed the amount of tax damage underlying Article 1 of Law 8,137/1990, based on the categories of monetary correction, default interest and administrative fines. The approach was divided into three parts. The first provides a theoretical framework for bringing constitutional law and criminal law closer together, based on a constitutional conception of the legal good. The second part studies the typical structure of Article 1 of Law 8,137/1990, which is characterized by the suppression of tax and any accessory, by means of the fraudulent methods set out in the sections. The third part tackles the problem by analyzing interest on arrears, monetary correction and tax fines, by questioning whether or not these categories are part of the axiological core of the legal good being protected – tax collection – as a constitutional value.