III

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Comments on the Constitutional Norms

 

Comments to the Article 150

 

(9) Tax Immunity

§33. Immunity is exception and, such as a human being is immune to a disease, because is not affected by the effects of this disease, persons and facts, declared as exceptions in the Brazilian Federal Constitution, are immune to the incidence of tax; despite the taxation (differently of a disease) be required for the life of the State and, in last instance, for the life of the individuals.

§34. This inductive process of relate the word “taxation” with the word “disease”, (i) has as its immediate cause the equality of a same vocable (immunity) for explain two different concepts, of distinct areas, and (ii) has as real cause the heavy tax burden that is imposed and which is different according the historical time [ tax burden which when is excessive is a problem not of the system, but it is a problem or (ii.a) of extraordinary situations (such as the war) or (ii.b) a problem of whom controls directly the State machine; machine which, in the course of the modern political history of mankind already was defended as the minor as possible (Liberal State), the biggest as possible (Social State) and was defended as something directly proportional to the will of the represented individuals (Democratic State) - these are political factors which, as constitutional substance, reflects the heavy or light taxation for the maintenance of the services of the State and, also, reflects the decision of the constitutional constituent of do not collect tax in certain facts and activities by reason of the importance of these, according the perspective of the time and the political science, for the constitution of the State machine and the political community].

§35. Note which the non existence of the obligation of payment tax is a result of the impossibility of this obligation be made on certain facts, which can not be taxed by reason of the nature, of the quality, of the person who engenders the act (which once performed became a fact for taxation purposes), and by reason of the nature of the own performed activity.

§36. Lastly, as the immunity is exception (constitutional exception), worth mentioning Carl Schmitt: “The exception is more interesting than the normal case. What is normal proves nothing, the exception proves everything; the exception does not only confirms the rule, but the exception gives live to the rule. In the exception, the life force goes further than the mechanical crust established on repetition. A protestant theologian, in the Nineteenth Century, demonstrated the vital intensity which the theological reflection can be able: ' The exception explains the general and itself. And when we want to study correctly the general case, we just need observe a real exception. Everything is enlightened by the exception on a more clearly form than the general in itself. With the time, one gets tired of the eternal discourse about the general; there are exceptions. If we can not explain the exceptions, we can not explain the general. Usually, we do not note the difficulty because we do not think about the general with passion, but with a comfortable superficiality' ” (Schmitt, Carl. Political Theology. 1. Definition of sovereignty).

§37. Then, let's analyze the importance of each exception established, currently, in Brazil and faced as necessary by the Political Science, for, from this analysis, by reflex, we understand what is inside of the constitutional system of taxation.

(9.1.)

§38. Concerning to the impossibility of the entities of a State establish taxation among them, related with heritage, income and services, it is possible to express that the cause of this immunity is a limit to the amendments of the forces which are, constitutionally, given to each entity of the State (according the imposts and the passing of collected taxes, instituted in the constitutional text) - the force of each entity is proportional to its tax revenues.

§38b. Nevertheless, the political-administrative autonomy of these entities is also secured by constitutional norm which establish minimum material resources to make possible such autonomy.

§39. Consequently, an entity can not collect tax of another entity because, if this happens, will occur an amendment to the power structure of the entities of the State and the principle of autonomy of such entities will be under attack, because, in the end, any creditor have some power of control on the debtor.

(9.2.)

§39b. Concerning to the prohibition to institute tax in temples of any cult, it is important understand, firstly, which the expression "temples of any cult" is related to the place, the establishment, on which exists the expression of the faith, no matters in what is this faith.

§40. Next, we need understand the fundamental right of freedom of faith and we need understand why a secular State is more efficient to pacify the society. When a State enters in faith issues, this State is attacking the intimacy of the citizens, homogenizing differences which shall not be homogenized. When an State establishes "in what" we should believe and "how" we should believe (and considering that the actions of the State has coercive force when necessary), this State strikes the freedom of internal forum (and the expression of this freedom), what is cause of the most deep feeling (because related to the intimacy) of hate by those which were prohibited of express their beliefs. From this notion of intimacy-faith and of a vision on the Mankind History, we can express that the disputes related to faith, if not were the direct causes, were the means to perpetrate the bloodiest atrocities (no wonder that the adage says be faith cause of blindness). For these reasons, be a secular State (in which exist separation between civil government issues and faith issues, no matters in what is this faith - State in which there is freedom of religion) is necessary as it ensures the coexistence of many species of religion, avoiding the "official" monopoly of one belief on the others and, consequently, avoiding the most intense conflicts, the conflicts related to the intimacy of each human being. The secular State is very well reflected on the Item I of the Article 19 of the Brazilian Federal Constitution: "It is prohibited to the Union, the States, the Federal District and the Municipalities: I - establishes religious cults or churches, subsidize them, embarrass the working of them or maintain with them or their representatives relationships of dependence or alliance, just being permitted, according to the law, the collaboration of public interest". Not collect imposts in the cult establishments is an attitude which symbolizes this separation (that denotes the secular State) between the civil government and the faith issues, as well as, is an attitude which collaborates, in an economical way, for the guarantee of the exercise of the fundamental right of freedom of faith.

§41. Furthermore, we need remember which not collecting impost is exception and reflects, directly, the importance of what is immune to the system. Thus, not collect imposts in cult establishments also reflects the power of the religion in the social organization as activity on which (due to its essentially) is established, constitutionally, the prohibition, to the State, of create difficulties for its development. In this meaning, beyond the pacification engendered by a secular State - above mentioned, there is a historic-social cause of this immunity which is the cultural multiplicity of the Brazil and the intensity with the Brazilians living faith, or, even, there is a natural cause in the sense that the faith is a human necessity.

§42. Also can be said, by a Marxist perspective, and in a paradoxical way to what was exposed before, that not collecting imposts in the cult establishments aims feed the opium (drug which causes extremely passivity to the user) which leaves the people passive to the deep cultural and material shortages in which are immersed, and leaves the people passive to the general misfortunes that affect them, becoming mass of easy maneuvering; and, in this sense, the promotion of the faith is a necessity of the State, without, necessarily, reflect a legitimate instrument of pacification (argument exposed in the observation of the secular State), but, before, reflecting an instrument of silent control by which is withdrawal the critical capacity of the people, in the meaning that the religious people accepts easily the world as it is, being the world more of the order of what is given (the order of the destiny) than something that can be built and something that is in incessant mutation.

§43. Regardless of our choice on the cause which explain the origin of this specie of tax immunity, the element that remains the same in all of them is the importance of the faith in the social organization.

§43b. In terms of Brazil, observes that the main room of the Brazilian Supreme Court contains a crucifx.

(9.3.)

§43c. From the notion that not collecting impost reflects the importance (for the social organization) of whom is not under the incidence of the tax power of the State, it is possible to express that:

(i) the Political Parties, as constitutive elements of the representative system related to the indirect exercise of the popular sovereignty, related to the exercise of the political power, can not be taxed because, if taxed, the taxation is the same that put an economical element in a politic-juridical environment which establishes the formal equality regardless the richness of its members. Insert an economical element in the exercise of the political rights guaranteed to the citizens is the same that pay to participate of the State of Law guaranteed by the estatal entity, which is prohibited in a Democratic System, which aims, principally, guarantee the equality of access and of participation in the activities of the public machine; observing that this participation, statistically, is proportional to the culture of the people;

(ii) the Labor Unions [collective entities which aims the defense of rights and interests of its members (interests which has strong social-economic impact because represents the aspirations of professional categories and the aspirations of economic categories of a people)], can not be taxed in imposts because, if this happens, will be hard build blocks of power (intra civil society) which are capable of amplify the voice, to the entities of the State, of the persons (natural or fictional) which exercise specific activities. Corroborating with the notion of freedom of labor union organization, worth remembering that is a social right the guarantee by which the State can not requires authorization for the foundation of labor union nor intervene in the union organization (Item I, Article 8, of the Brazilian Federal Constitution: “Professional or labor union organization is free, observed what follows: I - the law can not require authorization of the State to the foundation of labor union, except for authorization to enrollment of the union in the competent agency, being prohibited to the Public Power the interfere and the intervention in the union organization”). Certainly, we can express that the prohibition to the State of interfere in the labor unions, including the prohibition to collect imposts of these unions, represents (a) one of the limits to the State's intervention in the Economy; (b) represents a form of encourage the self-organization of civil society; (c) represents a form to facilitate the protection of rights.

(iii) the educational institutions and social assistance, without profit purposes can not be taxed because, if taxed, the Brazilian State will be disrespecting with obligations of services provide which committed to do, constitutionally, for its citizens. The Brazilian Federal Constitution, in its Article 205 and in the Paragraph First and Second of Article 208, express, respectively, that "The Education, right of all and duty of the State and of the family, shall be promoted and fostered with the cooperation of society, aiming the full development of the person, his preparation for the exercise of citizenship and his qualification for the work"; that "The access to compulsory and free education is a subjective public right"; and that "The competent authority is liable if the Public Power do not provides the compulsory education, or if the Public Power provides this education in an irregularly way". If a collective entity do not have the purpose of profit with education, it is not coherent - by the part of the State - hinder the economic life of this non-profit entity because, basically, this entity helps the State to comply with a obligation to him constitutionally imposed. The extinction of this help by the State is the same of him not fulfill his duty, considering that, at least in Brazil, the State, in a lot of social issues, is in debt with his duties and goals related to the welfare of citizens. For the social assistance institutions, the Brazilian Federal Constitution, in the Article 203, establish that: "The social assistance will be rendered to those who need, regardless of the contribution to the social security, and has as aims: I - the protection of the family, of the maternity, of the childhood, of the adolescence and of the old age; II - the support to needy children and adolescents; III - the promotion of the integration in the labor market; IV - the habilitation and rehabilitation of the handicapped and the promotion of their integration into community life; V - the guarantee of a minimum wage of monthly benefits to the handicapped person and the elderly who prove their incapacity of maintain the own survive or of having their survive guaranteed by their families, as established by the law". The logic is the same of the logic for the education, above expressed: not cause difficulty to those who help us to comply with an obligation. Interesting note that, with regard to Social Care, the Brazilian Federal Constitution not only makes the Non-Profit Entities immune to the incidence of taxes, but, also, in the Article 195, seventh Paragraph, establishes (with a technical-juridical concept error related to the word "exemption", but with extremely hit in relation to the social aim of the State) that: "Are exempted of contribution, to the Social Care, the Benevolent Entities of Social Assistance which has the requirements established in law".

(9.4.)

§43d. Books, newspapers, periodicals and the paper intended for their printing, were (at the time of the elaboration of the Brazilian Federal Constitution), by excellence, the dissemination's vehicles of the knowledge and of the information. Currently, with the Technology of Information which virtualizes everything which before needed of physical paper, aiming a better administration, and with the urgent necessity of preserve the environment, it is needed understand that the knowledge and the information, in a near future, will be totally virtualized, and, certainly, accessible in an online way. Despite this change, the importance of the possibility of dissemination of the human intellectual production continues to have a primordial function into a Democratic State of Law, in the sense that make possible the constant criticism and, consequently, the constant development of a people's culture. Thus, the imposition of difficulties to this dissemination is the same of the imposition of difficulties to the own development of a people.

 

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