Incentivos tributários: conceituação, limites e controle

Abstract

This research aims to study the tax incentives. Sort of inducer tax rule, the tax incentives have not already received the correct attention by tax law scholars. Keeping an eye on the increase of resources involving the tax incentives, and realizing the necessity of bringing more transparency and responsibility in the management of public expenditure, this work intend to study this little explored figure, distinguishing from other similar figures, which has been many times confused with. Although there has not been a constitutional or legal expressed meaning, it is possible to affirm the tax incentives are kinds of tax exemption, which implies derogation from general rules for taxation, with the not entering of resources into public purse, in order to get constitutional purposes and objectives. Due to this hybrid nature, the tax incentives are subject to constitutional and economic limitations, as well as budget and financial limitation. The main instrument of compatibility between the tax incentives, the ability to pay, equality and the economic order canons is the principle of proportionality. Legislative Power, Court of Auditors and Judiciary must supervise and control this kind of tax exemption. The control made by the Legislative (within the federal scope) has much been lacking, both in terms of controlling the budget and financial limits, and in terms of controlling the constitutional tributary and economic limits. The control by Court of Auditors (the Court of Auditors of Union was analyzed) seems to have some evolution. However the analysis of some Court s judgments reveals that it has much to improve, mainly concerning the investigation of legitimacy and economy. The LRF shows character of general rule in terms of requirement for granting tax incentives. Eventual non-compliance of this precepts by local rules reveals true unconstitutionality, which can be controlled by Judiciary. The actions of the Judicial Power, especially the STF actions, upon the tax incentives control have been fairly timid and lacking in transparency. In many cases, the STF has been limited to the reaffirmation of discretionary character of the acts performed by Legislative and Executive powers, but refusing the analysis of them. The requests of tax incentive extension have been unsuccessful, because of the large unrestricted application of negative legislator clause by STF. A conciliatory solution would be the Judiciary using the declaration of unconstitutionality without nullity pronunciation, allowing the tax incentives extension to that cases which the illegality is not in the incentive itself, but in the act of not applying the incentive extension to the taxpayers who are in the same situation. Although there are clear limits, it is possible to affirm that the tax incentives control still needs to evolve.