Princípio da capacidade contributiva : sua aplicação nas diversas espécies tributárias

Abstract

This research paper aims at showing the main controversies which are present such in the doctrine as in the homeland jurisprudence: when it comes to the possibility of applying the ability to pay principle in secondary taxes and in other sorts of taxation. At the beginning, there will be an approach about the taxes appearance as a way of conveying means to sponsor the expenses needed to maintain the social group organized. In this regard, there will be shown some theories that try to demonstrate which is the rightful form in the sharing of the tax burden among individuals. As it follows, this paper will present the historical evolution of the ability to pay principle, such as in the comparative law as in the national planning law, mainly in regards with its estimation in our constitutional texts. We will be paying close attention to the ambiguous way this principle was stablished in the 145 article §1º of the Federal Constitution of 1988, leading to some deep discussion - frequent nowadays - related to its possibility of being applied in many sorts of taxes in our constitutional taxation system, but not only in taxes as it is said in our constitutional system. We will be carrying out a relatively thorough examination on the possibility of applying the principle to each kind of taxation, referring to many theoretical chains about it, plus transcription and comments from decisions taken by the Supreme Federal Tribunal in the occasions it was summoned to decide upon the issue. We will be also analysing how to apply the principle of the ability to pay in the secondary taxes, because over these taxations we cannot assess, at the moment of the tax burden, the possibility of contributing from the one who is supporting the tax burden, the final consumer. Ultimately, we will be conveying a brief comment on how to apply the principle of the ability to pay in the jurisprudence of many countries, namely Spain, Italy and Germany.