IV
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§62.
"The State can not produce laws abusively, considering which all norms made by the Public Power - concerning or not tax issues - shall respect to the clause that respect, in its material dimension, to the principle of the substantive due process of law (F.C., art. 5, LIV). The postulate of proportion is qualified as parameter of measure of the own material constitutionality of the state's acts. Hypothesis in which the tax legislation is covered by the coefficient necessary of reasonably." (RE 200.844-AgR, R. Justice: Celso de Mello, Trial: 6-25-2002, Second Circuit, DJ: 8-26-2002; also RE 572.664 AgR, R. Justice: Ricardo Lewandowski, Trial: 9-8-2009, First Circuit, DJ: 9-25-2009).
"Only by law, in a formal sense, published in the previous financial year, it is allowed increase taxes, and it is needed understand in this meaning the initiative to change the basis of calculation of the impost on real estate properties in urban area (IPTU), with the use of generic tables of appreciation of these properties, concerning each location, what makes the tax more heavy. In this case the new rules related to the increase of the basis of calculation can not be applied in the same financial year in which they are published, without prejudice to the anteriority principle." (RE 234.605, R. Justice: Ilmar Galvão, Trial: 8-8-2000, First Circuit, DJ: 12-1º-2000).
“It is unconstitutional the increase of IPTU (tax on real estate property) without positive law, being prohibited the increasing, by act of the Executive Power, in percentage higher than the official indexes” (RE 648.245, R. Justice: Gilmar Mendes, Trial: 8-1-2013, Topic 211, DJ: 2-24-2014).
“When we are working with the installments of tax debts, the Complementary Law states that shall be a minimum of conditions and requirements to its concession to the taxpayer. In issues of legislative delegation, the Supreme Court are adopting a more flexible understanding of the Legality Principle, provided that the legislator observes a non arbitrary draft of the norm. The indetermination degree of the Law of Federative State nº 11.453/2000, reflected in the simple act of authorization for the Executive Power make the concession of installments, attacked the Article 150, I, of the Federal Constitution....To be in compliance with the Legality Principle, the Law of Federative State should states, further than the specific tax (IPVA) and the kind of taxpayer affected (debtors), also the term of the installments, with the number of subdivisions, the maturity of the debt, and the guarantees that the taxpayer shall presents...” (ADI 2.304, R. Justice: Dias Toffoli, Trial: 4-12-2018, Plenary, DJ: 5-3-2018).
"Direct actions of unconstitutionality. Art. 3 of the Law 7.940, of 12-20-1989, which considered the independent auditors as taxpayers of the supervision rate of the securities market. There is no violation to the equality principle, considering that such norm lays specif amounts to each species of taxpayer, being these amounts fixed according to the ability to pay of each professional. Rate which is related to the police power exercised by the Securities and Exchange Commission of Brazil, in the terms of the Law 5.172/1966 - National Tax Code. Direct action of unconstitutionality which is rejected, dismissed" (ADI 453, Rel. Justice: Gilmar Mendes, Trial: 8-30-2006, DJ: 3-16-2007).
“There is no prejudice to the tax equality if the law, by extra-tax reasons, implies unequal treatment to micro and small companies of different ability to pay taxes not considering the privileged tax regime for entrepreneur which can dispute the market without assistance of the State." (ADI 1.643, R. Justice Maurício Corrêa, Trial: 12-5-2002, DJ: 3-14-2003.)
“LC 87/1966. Impost on the circulation of goods and services (ICMS) and its institution. B.F.C. Arts. 150, II; 155, § 2º, VII, a, and VIII, CF...Operation of international air transportation. International transportation of loads by air. Taxation of the national companies. Concerning to foreign companies, are valid the international agreements. Reciprocity. Travels national or international. Difference of treatment. Absence of norms of pacification of competency's conflicts among States. The Article 150, of the Brazilian Federal Constitution shall be applied to the legal entities which are constitutive of the Brazilian State. This norm do not consider the Union when this is in relation in the international order. There is no incidence on services of air transportation, of inter-municipality passengers, nor of inter-state and of international transportation. Unconstitutionality of the requirement of ICMS in the service of international air transportation of loads by national air companies, while are valid the agreements of exemption of foreign companies." (ADI 1.600, R. Justice Sydney Sanches, Trial: 11-26-2001, DJ: 6-20-2003.)
“(...) Indeed, as we know, what is counted in the graphical account, by entry of goods, is the credit of ICMS, which one constitute part of the price payed by the taxpayer. Then, there is no relation of meaning between the operation of entered of a goods from foreign which, by obviously reason, is not taxed by the ICMS in the origin, with the goods acquired in the internal market, which price is constituted, always, also by the payed tax. Considering which these are different situations, there is no tax treatment that is analog, what, if was the case, would be an affront the equality principle." (RE 195.663, R. Justice Ilmar Galvão, Trial: 8-13-1997, DJ: 11-21-1997).
"Exemption of the impost on financial operation on imports. Limitations to the date of expedition of the import guide. Modification of the date when the generator fact occurred. Absence. Declaration of the unconstitutionality of the final part of the article 6, of the DL 2.434/1988. Impossibility. The tax exemption is originated from economical policy and tax policy, by the State, aiming the collective interest. It is discretionary act which is not under control of the Judicial Power and involves the judgement of convenience and opportunity of the Executive Power. The initial term of the legal validity of the exemption, fixed from the date of expedition of the import guide, do not causes damage to the principle of tax equality, nor modifies the date when occurred the generator fact of the tax, because the exemption is concerned to the exclusion of tax credit, while the generator fact has pertinence to the generation of the tax obligation." (AI 151.855-AgR, R. Justice Paulo Brossard, Trial: 5-24-1994, Second Circuit, DJ: 12-2-1994).
"Decision which declare undue the charge of impost in specific fiscal year do not has power on subsequents fiscal years (jurisprudence solidified by normative act of the Supreme Court - Súmula 239)"
"It is not unconstitutional the article 4, caput, of the Constitutional Amendment 41, of December 19th, 2003, which established the social security contribution on the income of retirement and pension of public servers of Union, states, Federal District and of Municipalities, including agencies and foundations" (ADI 3.105, R. Justice Cezar Peluso, Trial: 8-18-2004, DJ: 2-18-2005).
“To the impost on income calculated on the income of the base-year applies the valid law in the fiscal year in which shall be lodged the tax declaration to the State" (jurisprudence solidified by normative act of the Supreme Court - Súmula 584)
“The Plenary of the Court, when the judgment of RE 225.602 (R. Justice Carlos Velloso), dismissed the claim which only the special law, of the complementary type, can fix the conditions and limits of amendment of the percentage charged in import impost. In this judgment was also established the application of the mentioned normative act for hypothesis in which the generator fact is posterior to its edition. Absence of disrespect to the Brazilian Federal Constitution, article 150, III, a. (RE 219.893, R. Justice Ilmar Galvão, Trial: 2-2-1999, First Circuit, DJ: 5-28-1999.)”
“Import impost: modification of the percentage, by act of the Executive Power, observed the conditions and the limits established in law: F.C., art. 153, § 1º. (...). What the Federal Constitution of Brazil requires, by the article 150, III, a, is that the law, which institute or increase taxes, be previous to the generator fact. In the case sub judice, the executive act which modifies the percentage of the impost is previous to the generator fact of the import impost." (RE 225.602, R. Justice Carlos Velloso, Trial: 11-25-1998, DJ: 4-6-2001).
"The principle by which a law can not regulate a past fact only works as an impediment to the juridical activity of the State in the expressed hypothesis establish by the Brazilian Federal Constitution, aiming to avoid the action of the public power which can be considered as a abusively restriction (a) to the status libertatis of the person (F.C., art. 5, XL), (b) to the status subjectionais of the taxpayer in tax issues (F.C., art. 150, III, a) and (c) to the juridical security in the field of social relationships (F.C., art. 5, XXXVI). When the law which regulate a past fact do not generate nor produce the mentioned restrictions, there is no impediment to the State to establish normative acts which regulates past facts. But the laws, considering the prospective character by which them are revested, shall, usually, regulate the future. The constitutional system in Brazil do not established, in a absolute and unconditional way, the principle by which a law can not regulate a past fact." (ADI 605-MC, R. Justice Celso de Mello, Trial: 10-23-1991, Second Circuit, DJ: 3-5-1993).
"Legal replacement of the factors of indexation - was defended the occurrence of disrespect to the constitutional guarantees of the acquired right and the tax anteriority - absence - just monetary restatement which is not the same that increase taxes. (...) The replacement of the factors of indexation, based in the supervening legislation, do not constitute disrespect to juridical situations which already occurred (F.C., art. 5, XXXVI), nor disrespect to the postulate of not surprise, which is guaranteed by the tax anteriority (F.C., art. 150, III, b)." (RE 200.844-AgR, R. Justice Celso de Mello, Trial: 6-25-2002, Second Circuit, DJ: 8-16-2002).
“When the exemption is repealed the tax can be immediately charged. In these situations is not necessary observe the anteriority principle because the tax already exist. (RE 204.062, R. Justice Carlos Velloso, Trial 9-27-1996, Second Circuit, DJ: 12-19-1996).
“The Law of the State of São Paulo, n. 11.813/2004, just prolonged the charging of the impost on circulation of goods and services (ICMS) with the increased of percentage from 17% to 18%, percentage which was created by the Law n. 11.601/2003. The nonagesimal period established in the Brazilian Federal Constitution, art. 150, III, c, only shall be use in cases of creation or increase of taxes, but not in the hypothesis of simple prolongation of percentage already previously applied." (RE 584.100, R. Justice Ellen Gracie, Trial: 11-25-2009, Plenary, DJE: 2-5-2010.)
“Article 3, of the Law 15.747, of December 24th of 2007, of the State of Paraná, which establish, as initial term to the validity of the law, the date of its publication. Modification of the Law 14.260/2003, of the State of Paraná, which is related to the impost on ownership of motor vehicle - IPVA. Was defended the violation of the Brazilian Federal Constitution, article 150, III, c. The decrease or extinction of discount to the payment of tax under specific conditions established in law, such as the previous payment in a unique parcel, can not be understand as equal to the increasing of the mentioned tax - IPVA. The anteriority principle do not works in this case. Lost the argument by which the decrease or extinction of discount established in law implies, automatically and arithmetically, increasing of the value of the duty tax. Dismissed." (ADI 4.016-MC, R. Justice Gilmar Mendes, Trial: 8-1-2008, Plenary, DJE: 4-24-2009.)
“Import tax - II. Increase of the percentage from 4% to 14%. Problem with the body of evidence. (...) The characterization of abusive seizure only can happens with the analyses of the concrete data and the specifications of each operation or situation, considering the costs, global tax charging, profit margins and specific conditions of the market and the economical scenario and social scenario (...). The isolated increase of the tax percentage is not enough to prove the tax charging, made abusively, on economical product of private activity, in a way by which is impossible or excessively difficult this activity." (RE 448.432-AgR, R. Justice Joaquim Barbosa, Trial: 4-20-2010, Second Circuit, DJE: 5-28-2010.)
“It is possible, in the field of abstract normative control, the Federal Supreme Court of Brazil examine if a specific tax offends (or not) the constitutional principal of prohibition of seizure tax established in the article 150, IV, of the Federal Constitution. Hypothesis related to the examine of law (Law 8.846/1994, article 3 and its Unique Paragraph) which established fiscal penalty of 300%. The constitutional prohibition of seizure in tax issues - even when it is concerned to fiscal penalty for the taxpayer that not fulfilled their tax obligation - represents the prohibition, by the Political Constitution, of any governmental intend that can characterize seizure by the State of part of the profits or heritage of taxpayers, causing to them the difficult to exercises a right of dignity existence, or the practice of professional activity, or the satisfaction of their basic necessities, all because the tax burden is unbearable. The public power, specially in the field of taxation (even concerning to the measuring of the quantum of fiscal penalties), can not acts without proportion, because the governmental activity is essentially conditioned to the reasonable principle, which qualifies as true parameter of measuring the material constitutionality of the acts of State." (ADI 1.075-MC, R. Justice Celso de Mello, Trial: 6-17-1998, Plenary, DJ: 11-24-2006).
“It is constitutional the regime of replacement 'to forward', in which is required to the producer, to the seller of large quantities of products, or to other category of taxpayer, in the quality of tax substitute, the anticipated charge of impost on circulation of goods and services that is charged on the final value of the product, or the value charged of the consumer, taking off of the reseller or retailer, which was substituted, the liability for the tax. Precedent: RE 213.396/SP, trial of 8-2-1999. There is no offense to the property's right, nor the occurrence of seizure which was established in the article 150, IV, of the Federal Constitution." (AI 207.377 AgR, R. Justice Néri da Silveira, Trial: 5-2-2000, Second Circuit, DJ: 6-9-2000).
“Tax. Toll. Law 7.712, of 12-22-1988. Toll: juridical nature: rate: F.C., article 145, II; F.C., article 150, V. Constitutional legitimacy of the toll established by the Law 7.712/1988." (RE 181.475, R. Justice Carlos Velloso, Trial: 5-4-1999, Second Circuit, DJ: 6-25-1999).
“The tax immunity established by the article 150, VI, a, of the Federal Constitution applies to the import operations of goods made by municipalities when the public entity is importer of goods (identity between the 'taxpayer of right' and the 'taxpayer of fact'). It is duty, of the entity who charges the tax, prove that the situation of not charge the import operations is making negative influence in the market to the point of offends the article 170 of the Federal Constitution. Impossibility to presume risk for the competition and free business initiative." (AI 518.405-AgR, R. Justice Joaquim Barbosa, Trial: 4-6-2010, Second Circuit, DJE: 4-30-2010).
“Extraordinary Appeal against Judgment which considered, as possible of taxation, real estate used by the Petrobrás for the setting-up and operation of means to transport their goods. Alleged reciprocal immunity, considering that the public-held company develops economical activity which need be under monopoly of the State. It is not important to the definition of the applicability of reciprocal tax immunity the circumstance of the developed activity be or not under control of the State. The meaning of the constitutional rule encompasses the examination of (i) economical characteristic of the activity (profitable or not), (ii) of the risk to the competition and the free business initiative and (iii) of the risk related to the federalist pact by the political pressure or economical pressure. The reciprocal tax immunity do not applies to Petrobrás because: Petrobás has a mixed capital (private and public capital) and its purpose is benefit the shareholders, and it is not possible consider the tax protection for protect increase of capital not considering the primarily public interest; The Petrobrás aims the distribution of profits, and, then, has ability to participate of the economical support to the entities of the State. The taxation of the profitable economical activity do not implies risk to the federalist pact." (RE 285.716-AgR, R. Justice Joaquim Barbosa, Trial: 3-2-2010, Second Circuit, DJE: 3-26-2010).
“Empresa Brasileira de Infraestrutura Aeroportuária – INFRAERO. Company with public capital. Reciprocal immunity. Article 150, VI, a, of the Brazilian Federal Constitution. The Infraero, company with public capital and that provides public service is protected by the tax immunity established in the article 150, VI, a, of the Federal Constitution. There is no impost on services (ISS) on the service provided by Infraero in the execution of services of airport infra-structure, activity determined by the Federal Union." (RE 524.615-AgR, R. Justice Eros Grau, Trial: 9-9-2008, Second Circuit, DJE: 10-3-2008).
“The tax immunity is related to imposts, but not to tax contributions" (RE 378.144-AgR, R. Justice Eros Grau, Trial: 11-30-2004, First Circuit, DJ: 4-22-2005).
“The reciprocal tax immunity - F.C., article 150, VI, a - only is applied to imposts, not to tax rates." (RE 364.202, R. Justice Carlos Velloso, Trial: 10-3-2004, Second Circuit, DJ: 10-28-2004).
“The constitutional guarantee of the reciprocal tax immunity not permits the incidence of tax on heritage and income of the legal entities of the State. The invested amounts and the earned income by these entities is immune to imposts. The reciprocal tax immunity is an immediate result of the equality principle concerning the constitutional entities, supported by the federalist structure of the Brazilian State and by the autonomy of the municipalities." (AI 174.808-AgR, R. Justice Maurício Corrêa, Trial: 3-11-1996, Second Circuit, DJ: 7-1º-1996).
"Religious institution. Impost on property of urban real estate (IPTU). IPTU on buildings of these institutions that are rented. The tax immunity established in the article 150, VI, b, of the Brazilian Federal Constitution, shall consider not only the buildings for worship, but, also, the heritage, earnings and services related to the essential aims of the religious entities. The § 4º of the constitutional norm works as interpretative perspective to the letter 'b' and letter 'c' of the incise VI, of the article 150. Equivalence between the situations referred to in these commands." (RE 325.822, R. Justice Min. Gilmar Mendes, Trial: 12-15-2002, Plenary, DJ: 5-14-2004).
“The tax immunity provided by the article 150, VI, c, of the Federal Constitution, to the institutions of social assistance without profit purposes just has validity to the closed entities of social security if there is no contribution of the recipients." (jurisprudence solidified by normative act of the Supreme Court - Súmula 730)
“Even when rented to thirds, remains immune to IPTU building of property of any entities referred to by the article 150, VI, c, of the Federal Constitution, observing that the earnings of the rent shall be applied to the essential activities of these entities. (jurisprudence solidified by normative act of the Supreme Court - Súmula 724)
“In the taxation of the import operations, the taxpayer by excellence of the tax is the importer (which usually is who acquires the goods) and not the seller. There is confusion among the taxpayer of right and the taxpayer of fact. Then, there is no sense in argument that the tax immunity do not applies to charitable organization of social assistance in the import operations by the reason that the constitutional rule does not apply to the protection of third parties who should bear the burden of taxation." (AI 476.664-AgR, R. Justice Joaquim Barbosa, Trial: 4-6-2010, Second Circuit, DJE: 5-7-2010).
“Immunity. (...) There is no applicability of immunity to the hypothesis of liability or tax replacement. (...) Extraordinary Appeal against judgment that considered the validity of the tax liability of the Serviço Social da Indústria - SESI by the collection of impost on circulation of goods and services (ICMS) payable in operation of goods, under the regime of deferral. Defended the violation of the article 150, IV, c, of the Federal Constitution, that establishes on the immunity of non profit assistance entities. The liability or tax replacement do not changes the main premises of taxation, which the rule continues to focus on the realized operation by the taxpayer. Then, the tax immunity do not affect, by itself, the relation of tax liability or tax replacement and do not exonerate the substitute or the taxpayer." (RE 202.987, R. Justice Joaquim Barbosa, Trial: 6-30-2009, Second Circuit, DJE: 9-25-2009).
“Tax. Impost on circulation of goods and services. Import operations of goods realized by entity of social assistance. (...) The jurisprudence of the Court is in the meaning that the immunity established in the article 150, VI, c, of the Federal Constitution includes the ICMS on import of goods used in the providing of the specific services of these entities." (AI 669.257-AgR, R. Justice Ricardo Lewandowski, Trial: 3-17-2009, First Circuit, DJE: 4-17-2009).
“Concerning the entities of social assistance that observes the requirements observed by the entity which is litigating, this Court has recognized in their favor the tax immunity established in the article 150, VI, c, and, concerning to the impost on financial operations (IOF), the Second Circuit, in the RE 232.080-AgR, R. Justice Nelson Jobim, recognized the application of this immunity, expressing the decision in RE 183.216-AgR-ED, in which stressed that '(...) the fact of the entity make the application of resources do not means activity beyond of what was established in their incorporation act'." (RE 241.090, R. Justice Moreira Alves, Trial: 2-26-2002, First Circuit, DJ: 4-26-2002).
“Closed entity of social security. Concession of benefits to affiliates by collection of contribution agreed. Absence of tax immunity considering the absence of the characteristics of universality and generality of the service, specific of the entities of social assistance. The entities of social assistance, that established in their aims the observation of the universality principle, the generality principle and conceive benefits to all people, independently of contribution, can not be compared with the closed entities of social security which by the contractual relation signed, only gives benefit to a specific class, observing which the benefits established in their bylaws depends of the collection of the contribution agreed, conditio sine qua non to the integration of the person into the system." (RE 202.700, R. Justice Maurício Corrêa, Trial: 11-8-2001, Plenary, DJ: 3-1-2002).
“The tax immunity established in the article 150, VI, d, of the Federal Constitution include films and photographic papers which are necessary to the publication of papers and journals." (jurisprudence solidified by normative act of the Supreme Court - Súmula 657)
“Immunity conferred by the article 150, VI, d, of the Federal Constitution. Impossibility of be extended to others inputs which are not included in the meaning of the expression 'paper for impression'. Precedents of the Court." (RE 324.600-AgR, R. Justice Ellen Gracie, Trial: 9-3-2002, First Circuit, DJ: 10-25-2002).
“The being reason of the tax immunity established in the constitutional text, and anything appears without a sufficient reason, a necessity, is on interest of society in avoid procedures that, even being protected by laws, are able to inhibit the material and intellectual production of books, papers and journals." (RE 174.476, R. Justice Marco Aurélio, Trial: 9-26-1996, Plenary, DJ: 12-12-1997).
“The buyer who obligate himself to buy the residential real estate with record in name of an Agency is taxpayer of the impost on property of urban real estate." (jurisprudence solidified by normative act of the Supreme Court - Súmula 583.)
“It is applied the reciprocal tax immunity to agencies and public companies which provide undoubted public service, since among others legal and constitutional requirements do not distributes profits or results direct or indirectly to private sector, nor have by main purpose the growing of heritage of public power (absence of ability to pay) and do not develop economical activity that can give advantage which private companies can not get (free business initiative and competition). The Autonomous Service of Water and Wastewater is immune to taxation by impost (article 150, VI, a, and § 2º and § 3º of the Federal Constitution). The charging of rates, isolated considered, do not change the conclusion." (RE 399.307-AgR, R. Justice Joaquim Barbosa, Trial: 3-16-2010, Second Circuit, DJE: 4-30-2010).
F.C., Art. 150, VI, § 3º
“Prices of public services and rates is not the same thing, because these, unlike those, are compulsory and its collection depends of previous authorization in budget that is related to the law which established the rate. (jurisprudence solidified by normative act of the Supreme Court - Súmula 545.)
“The fiscal penalty by moratorium constitute administrative penalty do not including itself in the credit enabled in bankrupt." (jurisprudence solidified by normative act of the Supreme Court - Súmula 565).
“Right to credit of the amount of impost on industrialized products (IPI) which was payed in the acquisition of inputs or raw materials taxed and used in the industrialization of products whose exit from the plant is exempt or subject to tax percentage zero. The compensation established in the Federal Constitution, for purposes of not permits the situation of tax accumulation, depends of the measuring between values charged when the goods enter and values due at the exit: the credit of who acquired goods shall be established according the amount charged from the seller of inputs, and the debit of who acquired the goods will exist when the industrialized product is sold to a third party, inside the productive chain. Although the exemption and the tax percentage reduced to zero has different juridical nature, the consequence is the same, by reason of decreasing burden tax. The constitutional regime of the impost on industrialized products (IPI) determines the compensation of what is due in each operation with the amount charged in the previous operations, being this mechanism the juridical essence of the tax principle of not accumulate, observing its absence when there is no product charged in the exit, because the cycle is not complete. With the article 11, of the Law 9.779/1999, the juridical regime of IPI was completed, observing that only from the beginning of the validity of this norm which it is possible has right to tax credit originated by the acquisition of inputs or raw materials taxed and utilized in the industrialization of exempted goods or goods for which the tax percentage was reduced to zero." (RE 475.551, R. Justice Cármen Lúcia, Trial: 5-6-2009, Plenary, DJE: 11-13-2009).
“This Court established precedents in the meaning of the constitutionality of regime of tax replacement. The circumstance of the operations be with pharmaceutics products does not exclude the precedents." (RE 216.835-AgR, R. Justice Joaquim Barbosa, Trial: 9-29-2009, Second Circuit, DJE: 10-29-2009).
“The Constitutional Amendment 03/1993, that introduced the § 7º into the article 150, of the Federal Constitution, perfected the institute already with validity in the Brazilian tax system, with the establishment of the generator fact which is presumed and with the establishment of the guarantee of immediate and preferential reimbursement of payed tax in case of be not verified the fact in the future. The circumstance of be presumed the generator fact do not constitutes impediments to the previous requirement of the tax, considering be a mechanism, established by the own Constitution, regulated by the special law called complementary which, to determines its calculation basis, uses the criteria of estimation to be closer of the reality. The complementary law determined the timing aspect of the presumed generator fact as being the exit of goods from the place of the substitute taxpayer, not allowing margin to understand a different moment, in the future, in accordance with the article 114 of the Brazilian Tax Code, that has as the generator fact of the principal obligation the situation established in law as necessary e sufficient to its occurrence. The presumed generator fact, by this, is not temporary, but final, do not giving possibility to the restitution or complementation of the payed impost, unless in the case of restitution in hypothesis of not occurrence in the future. Consider the opposite is the same of do not consider the institute of the advantages that determined its conception and adoption as the decrease, in just one time, of the fiscal-machine and of the tax evasion to minimal dimensions, providing, then, bigger convenience, saving, efficiency and velocity to the activities of taxation and collection." (ADI 1.851, R. Justice Ilmar Galvão, Trial: 5-8-2002, Plenary, DJ: 11-22-2002).
F.C., Art. 151, I
"The Constitution, in the end of the article 151, I, express that is 'admitted the concession of tax incentive for promote the balance of socio-economic development between different regions of Brazil'. The concession of exemption is discretionary act by which the Executive Power, founded in the judgment of convenience and opportunity, implements its economical and fiscal politics and, therefor, the analysis of the content of this specie of judgment is not under the control of the Judiciary Power. Precedents: RE 149.659 e AI 138.344-AgR." (RE 344.331, R. Justice Ellen Gracie, DJ: 3-14-2003).
It is not possible to the Judiciary Power extend exemption to the taxpayers not included by the law, considering the equality (RE 159.026)." (RE 344.331, R. Justice Ellen Gracie, Trial: 2-11-2003, First Circuit, DJ: 3-14-2003).
“Constitutional Amendment (EC 41/2003, article 4, unique paragraph, I and II). Public Service. Salaries. Retirement incomes and pensions. There is incidence of social security contributions. Different bases of calculation. Arbitrariness. Discrimination among servers and pensioners of the Union, on one hand, and servers and pensioners of the States, Federal District and municipalities, on the other. Disrespect to the constitutional principle of equality in taxation, which is a consequence of the fundamental principle of equality." (ADI 3.105, R. Justice Cezar Peluso, Trial: 8-18-2004, Plenary, DJ: 2-18-2005).
“The exemption of state tax established in the General Agreement of Tariffs and Commerce for imported goods of the countries who signed it, when the national similar goods has the same benefits, was approved by the Constitutional Republic of 1988. The article 98 of the Brazilian Tax Code 'has national meaning, with efficiency to the Union, States and Municipalities' (vote of the Justice Ilmar Galvão). In the international law only the Federative Republic of Brazil has competency to sign agreements (article 52, § 2º, of the Federal Constitution), not the Union, States or Municipalities. The president of Republic do not subscribes agreements in the condition of chief of the government, but as chief of the State of Brazil, what prevents the existence of an heteronomous exemption, prohibited by the article 151, III, of the Constitution." (RE 229.096, R. Justice Cármen Lúcia, Trial: 8-16-2007, Plenary, DJE: 4-11-2008).
“Reasoned, the judgment which solved the appeal made to clarify the previous judgment, that expressed: "(...) It is not exemption established by the Union, which is prohibited by the article 151, III. The concept of exemption does not include the determination by which the calculation bases do not considers the impost on goods industrialized (IPI) when the operation engender the generator fact of the two imposts. The tax exemption not considers goods or person in the principle of taxation generality. The same legislator (that prohibited to Union the institution of exemption of imposts of competency of the States, Federal District and Municipalities) establishes in the incise XI, of the article 155, the not inclusion of the IPI in the calculation bases of the impost on industrialized products. Do not include the IPI into the calculation bases of the impost on the circulation of goods and services (ICMS) not exempt the taxpayer of the ICMS. Exemption is do not charge the taxpayer by the payment of imposts. The legislator of the Federal Constitution, predicting the voracity of the state legislature, established a constitutional norm by which the calculation bases of the ICMS can not include the IPI. (p.87) (...)' It is important enlightening that the mentioned constitutional disposition, article 155, § 2º, XI, does not established a difference between industrial plant and similar plant considered equal for juridical purposes. What matters, again, is verify the occurrence of fact situation related to the incise XI, of § 2º, of the article 155, of the Federal Constitution, observing that the taxpayers of impost on industrialized products (IPI) are defined in the Codex of Brazilian Taxation (CTN), article 51." (RE 170.412, Vote of R. Justice Carlos Velloso, Trial: 9-24-1996, Second Circuit, DJ: 12-13-1996).
"Impost on the circulation of goods and services (ICMS). Tax benefits conceived to internal operations. Extension to import operations of goods from country who signed the General Agreement on Tariffs and Trade (GATT). Disrespect reflected or indirect to the constitutional text. The judgment that was appealed is in comply with the understand solidified by both Circuits of this Court, in the meaning of considered infra-constitutional the discussion about the extent or nor of the tax benefit to the ICMS, conceived to internal operations, also for the import operations of products which came from countries which signed the GATT." (AI 560.391-AgR, R. Justice Joaquim Barbosa, Trial: 2-10-2009, Second Circuit, DJE: 3-20-2009).
“Concerning to the content of the litigation, the constitutional prohibition of unequal treatment to taxpayers that are in equal situations was not observed by the legislator of the state when enacted the law under attack. A deeper examination, after the granting of the injunction, revels do not be possible that only the affiliates of a specific legal entity (collegia) can have the exemption of impost on the ownership of motorized vehicles (IPVA), in the universe of owners of vehicles used for schools to transport students. Concerning to the equality principle established in the article 152, of the Federal Constitution, and concerning to the observing due to this principle, Sacha Calmon Navarro well expressed the terms of their extent, when expressed that 'the principle of equality of the taxation implies in the legislator not discriminate among equals, which shall be treated in a equal way." (ADI 1.655, vote R. Justice Maurício Corrêa, Trial: 3-3-2004, Plenary, DJ: 4-2-2004).
“Tax evasion of profits originated from criminal activities: non olet. Drugs: drug traffic, including legal entities (companies), with high profits that was not considered in the regular accounting of these companies and not considered in the income statement: in thesis, crime of tax evasion, that implies the competence of the Federal Justice and attracts, by connection, the crime of traffic: it is not important the origin, even when from criminal activity, of the earnings no stated. The tax exemption of economical results of criminal fact - before be corollary of the principle of morality - constitute disrespect to the principle of tax equality, which is of a clear ethical essence." (HC 77.530, R. Justice Sepúlveda Pertence, Trial: 8-25-1998, First Circuit, DJ: 9-18-1998).
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