O controle das normas extrafiscais : perspectiva a partir da igualdade tributária, capacidade contributiva e proporcionalidade

Abstract

From the moment new conceptions of the State emmerged regarding interference in the economic and social order, tax rules came to be understood as an instrument for achieving state purposes, no longer limited to the function of obtaining public reve-nue. However, by disposing of extrafiscal rules aiming intervention in the economic and social order, there is interference in the fundamental rights of taxpayers. In this context, it was observed/verified that the extrafiscal rules require/pressupose/demand the application of the principles of equality, contributory capacity and the postulate of proportionality, which manifest specific content in relation to the purposes to be pur-sued by/objectives pursued by the extrafiscal rules. The objective of the work is/this work aims to, therefore, to describe and explain the limits to the use of extrafiscal rules, notably, from the identification and application of the criteria to be used in the control of extrafiscal rules. The study will adopt the systematic interpretation and the Hypothetico-deductive method, submitting itself to the premise of the possibility of the State intervening in the economic and social order through tax rules in order to identi-fy the control criteria to be used in the application of these measures. Furthermore, the historical, structuralist and functionalist methods of procedure will be employed. As a result, this research observed that the capital and means of production crisis, added to the phenomena of the warfare economy, demanded State intervention in the conduction of development and in the phenomenon of constitutionalization of the economic and social order, which resulted in the delimitation of the objectives to be pursued by the extrafiscal rules. In addition, the principles of equality, contributory capacity and proportionality have specific content when faced against extrafiscal ru-les, adapting their content to the realization of the objective of the extrafiscal rule. In this way, it is proposed as control criteria tax equality, contributory capacity, normati-ve effectiveness, proportionality, binding of the collection product, complementarity, subsidiarity and economicidade. At last, it was possible to demonstrate how criteria of extrafiscal rules should be applied from cases analyzed by Federal Audit Court e Su-preme Court.