Deferência ao legislador: critérios para a delegação normativa da imposição tributária

Abstract

This is a study about the profile of tax legality in Brazil. The focus is to determine whether tax delegation is admissible in the Brazilian legal system and, if so, in what limits and under what criteria. The starting point are the preliminary notions of Rule of Law, Separation of Powers, legal certainty, legality in Public Law and Administrative Law, and the philosophical premises adopted. When entering the thematic of tax legality, the bases of the institute are developed, explaining the historical origin and its constitutional foundation. Thereafter, the formal aspect of tax legality is briefly discussed, since the focus of the study is in the material scope, in which four doctrinal currents are discussed: the first one, of the doctrine of closed typicity; the second, corresponding to the premise of the determination of the legal language, with the reasoning between those who claim the possibility of using types and undetermined concepts in legal bills and those who do not agree with that position; the third, in which the indeterminacy inherent in language is taken as a premise, from which one can criticize the so-called natural delegation; the latter, corresponding to those who expressly admit intentional tax delegation, unrelated to linguistic presuppositions. Moreover, it is verified the structure of the Brazilian Tax System admits, explicitly and implicitly, the tax delegation. In the end, before analyzing the jurisprudential tendencies, this research provides criteria to the reasoning of tax delegation in Brazilian law.