III

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Comments on the Constitutional Norms

 

Comments to the Article 150

 

(8) Taxation, Fundamental Right of Free Movement and Right of Property

28. Restrain the freedom of movement of a person it is the same which mow part of its nature. This is why the imprisonment, though it is still necessary, can, dangerously, be the cause of depersonalization of the human being - who sees a part of himself that, before, was potent, become impotent.

29. The restrain of such fundamental liberty, however, can have several causes, from the imprisonment by a murder to the imposition of tax which purpose is create income with the movement of persons. Note that the toll, even being permitted in the Constitution, also is a restriction to the freedom of movement.

30. Concerning to the circulation of goods, this can be, or not, the result of an exchange (the company can transport a good of its property from a store to another, without exist commercial exchange). However, when we observe the circulation of goods which reflects an exchange, we verify which there is a relation between (i) this circulation, (ii) the economics development and (iii) the possibility of the act of exchange a good on which exist property a possibility inherent to the right of property. According to this relation, collect tax on the circulation of goods constrain the economic development which occurs trough the exercise, more or less fast, of exchange of goods. Juridically, collect tax on the circulation of goods is the same of make more difficult the exercise of the right of property.

31. The ICMS [Impost on (i) the operations related to the circulation of commercial goods and (ii) the rendering of services (ii.a) of inter-state transportation and transportation inter-municipalities, and (ii.b) of services of communication; even if such operations and renderings begin abroad], established in the Brazilian Federal Constitution (Article 155, II), it is an example of taxation on the circulation of goods (specifically, goods for commercial purposes).

32. Then we can verify which the Brazilian Federal Constitution establish, of one side, the protection to the right of free movement and to the right of property, which were established as fundamental rights, at the same time which establishes the Constitution, by another side, the toll and the ICMS, which are ways of restrain, respectively, the circulation of persons and the commerce's developement.

32b. And if life is movement, then the State restrains the life is it wanted? Is it necessary? There are other options of taxation and of social organization?

 

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CONTACT for legal advice

 

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