Sanções não pecuniárias no Direito Tributário em razão do descumprimento de obrigação principal:análise crítica da doutrina e da jurisprudência acerca das denominadas sanções políticas

Abstract

Despite the fundamental role of taxation under the Democratic State ruled by the Law (Fiscal State), in which the duty to pay taxes is considered a fundamental duty, persist in the Brazilian doctrine and court precedents positions associating an odious character to taxes. These hostile positions to taxes stem from an ultra-liberal ideological bias that is not justified under the system of guarantees and fundamental rights designed by our Federal Constitution. This widespread ideology has influenced the mistaken interpretation and application of various institutes and tax norms, such as in relation to the non-pecuniary administrative sanctions (restriction of rights) used to punish the nonpayment of the main tax obligation, also called political, moral or indirect sanctions. This dissertation analyzes critically how the national doctrine and the historical and current precedents of our superior courts have beenpositioning themselves regarding the constitutionality of these sanctions, in order to point out the theoretical inconsistency of the still prevailing positions, either under the theory of sanction or under the neoconstitutionalism's ideas, proving to be legally unjustifiable to consider prima facie unconstitutional a tax penalty for the only reason that it is non-pecuniary, because this kind of value judgment requires a specific analyzes of the proportionality of the sanction in each case, taking into account the principles, interests and circumstances involved. In addition to important court precedents on the subject and the positions of renowned authors, the dissertation also analyzes separately the direct actions for the declaration of unconstitutionality (ADI) n. 5135 and 5161 (trial are still pending), which deal respectively with the controversial issues of the protest of Certificates of Overdue Tax Liability and of the prohibition to companies with open debts with the Federal Government to distribute profits and bonus.