Comments on the Constitutional Norms


Comments to the Article 150


(15) Mechanisms to make harder the decline of tax collection


52. Concerning to the situations expressed in the Sixth Paragraph, of the Constitutional article under analysis:

(i) subsidy (Incentives to decrease the tax burden of a specific taxpayer) or exemption (legal impediment to charge taxes on a specific fact, by reason of the specific characteristics established in positive law);

(ii) decrease of the calculation basis (decrease of the amount on which is applied the percentage to calculate the owed tax);

(iii) grant of presumed credit (a priori establishment of tax credit);

(iv) amnesty (extinction of tax credit which was established by a sanction imposed by the State in an unlawful act of the taxpayer) or forgiveness act (extintion of the credit which was originated by tax obligation usually due by the taxpayer, even after one of the steps of its origination, by relevant reason) it is possible verify, by the above situations, which these are related to the possible decreases in the State revenue collection capacity by reason of concession of privileges to certain taxpayers. By this perspective, the establishment of law to determine the above situations brings stability to the tax system considering that these situations are not freely determined by the will of who rules, because, based on the alternation of power, the ruler, naturally (and, many times, abusively) seeks to give preference to their allies.

53. Finally, it is interesting note which the express reference to the Article 155, Second Paragraph, XII, "g", of the Brazilian Federal Constitution, according which benefits, incentives and exemptions of Imposts of Federal State competence, on the Circulation of Goods and Services (ICMS), shall be established only by complementary law (law that has more difficulty to be made by reason of be related to constitutional issues), has its motivation on the necessity of make more difficult the tax war between the Federal States.


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