Tributação no Estado democrático de direito: a função social dos tributos

Abstract

The present study has as its central theme the social role of taxation in the Democratic State of Law. Initially, a historical overview on the fundamentals of taxation has been presented, showing the evolution which took place throughout the different state models experienced. Then, some ethical features related to the tax activity have been pointed, specially the notions of fiscal justice and the redistribution of wealth, which must work as fundamentals for taxation. Afterwards, the evolution of the legal-tax thinking has been shown, this thinking has been considering taxation not as an end in itself anymore, based on the State sovereign power, but by the approach of its relation with the fundamental rights, increasingly more evident. After having presented general aspects relating to the principle of social role, the possibility of its application, also in the tax area, has been identified, taking into consideration the power taxation plays in society. In this sense, it has been shown that the tax activity plays an important role in the promotion and financing of the fundamental rights, being appropriate the implementation of mechanisms that favor the practice of this social role of taxation, such as the taking of extrafiscal measures. Subsequently, it has been found that in the Democratic State of Law, the payment of taxes represents a citizen true fundamental duty, which must contribute to the maintenance of the society he / she constitutes, based, among other factors, on the idea of social solidarity, constitutionally foreseen among the fundamental aims of the Federative Republic of Brazil. Concerning the social solidarity, it has been pointed out that, as a rule, it is applied to the extrafiscal taxes according to principle, which may trigger their decrease or increase; as to the fiscal taxes, the social solidarity is seen mostly through the principle of the contributive capacity; as to contributions, the group solidarity fundamental duty is applied , except for the contributions to the Social Security , in which the general social solidarity fundamental duty is applied. Through the analysis of concrete cases, it has been verified that the Brazilian High Courts have been adopting the notion of social solidarity in the tax area, helping the understanding that taxation plays a social role to be applied.