I

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Introduction

 

1. The fundamental connection between State-machine and the human being is reflected in the notion which the last (restricting their natural liberty) builds the first aiming their protection and the best development of the potentialities which nature given to us. In another words we create the State to be served by him; and the State is necessary (to the point that we established impediments to our own actions) while means to achieve our basic purposes: the living and the good life.

2. However, the inversion of roles (by which the citizen pass to serve the State; by which the creature-machine requires of its human creators counter-benefits very costly, or, even, impossible to be fulfilled) is a fact in the history of mankind.

3. The reason of the oppression of the natural life (and of the private collective entities), by the artificial life of the State, certainly, resides in the fact that machines are commanded by human beings and that human beings - agents self-interested - that human beings acts, many times, with the most complete forgetfulness of the basic purposes for which the State was created. Note which is a circle: human being > State > human being; and that the collective personality, supposedly synthesized in the will of the State, is in the middle.

4. The Constitutionalism came, exactly, with the intention to make difficult the distortion of the purposes for which the State was built; distortion, e.g., reflected in the legislative creation of taxes with character of seizure, in the establishment of abusive tax rates and in the judicial interpretation against the taxpayer on situations of clear illegality committed by the State.

5. The constitutional norms (guarantors of essential rights of those who create the State), being these norms positive or being these norms pre-supposed in the integrity of the constitutional text, the constitutional norms are the strongest brakes to the sovereign power of taxing; are the impediments imposed to the State in relation to the possibility of the State require of its constitutive members a nutrition exaggerated, not fruitful for the realization of State purposes.

6. Understand the structure of the limitations to the taxing power, created by the Brazilian Federal Constitution of 1988 and its Amendments, through the multidisciplinary search of its causes and through a systematic hermeneutic of constitutional norms, is the objective of this work.

 

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CONTACT for legal advice

 

Rafael De Conti, Rafael Augusto De Conti, Brazilian Tax Lawyer, Lawyer in Brazil