Direito tributário e controle de constitucionalidade: o STF como intérprete da Constituição tributária à luz do sistema de precedentes

Abstract

In this thesis, we analyze the formation and application of constitutional tax precedents by the Supreme Court. Our goal is to demonstrate that, specifically in its binding decisions on tax matters, the Court has underutilized the tools that make up our precedent system, created by the constituent and the legislator, in order to produce consistent, secure, predictable, and uniform understandings. For the purposes of this work, we adopt as binding the decisions of Brazilian Supreme Court (STF) the ones that are obligatory, as provided for in the Federal Constitution, laws, and the Court's own decisions. These are the so-called "strong sense" binding precedents, not only because their effects, by express constitutional or legal provision, transcend the parties involved in the case, but also because, under current law, the Judiciary and the Executive branches are required to observe them, even if they disagree with them. The work is divided into four chapters, which address (i) the historical evolution of the formation of our precedent system; (ii) the elements and typical figures of precedent system; (iii) the rules, principles, and fundamental rights that justify the special relevance of deciding based on precedents in tax matters; and (iv) how the STF has formed and applied binding tax precedents. We conclude that the STF has the capacity to develop tools that can enhance the system, such as the summaries of prevailing case law and judgment theses. However, when analyzing the precedents that apply legal and jurisprudential institutes, we observe a reduced use of the available resources to strengthen the Court's decisions. By not appropriately implementing the rules and principles of the precedent system, the Court creates norms that disconnect from those already in place, which directly interferes with the rationality of the National Tax System, which is already extremely complex in itself. This disconnection also affects the trust placed in the Court. Ultimately, this competence of (co)creating tax law, based on the interpretation of the Constitution and its own decisions, if exercised inadequately in relation to the rules and principles that underpin a precedent system, can lead to an overreach of the Court's role.