Competência tributária extraordinária em tempos de emergência

• Ano de defesa: 2022
• Autor(a) principal: Bivar Neto, Fernando Caldas
• Orientador(a): Becho, Renato Lopes
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Tributação; Emergências; Acomodação jurídica; Competência tributária; Exoneração fiscal; Controle judicial
• Palavras-chave em Inglês: Taxation; Emergencies; Legal accommodation; Tax competence; Tax exemption; Judicial control
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/25954

This work aims to analyze the legal institutes supported by the constitutional tax system to face emergencies, understood as the factual situations that, clashing with ordinary circumstances, require the adoption of extraordinary legal instruments for the return to institutional normality. For the research carried out, it was sought to analyze how some perspectives of legal positivism provide solutions for emergency situations. Then, the objective was to demonstrate the difficulties faced by normativist legal positivism regarding the object of study, as well as some of the possible influxes from which the socalled post-positivist legal thought contributed to provide legal responses to extraordinary events. From this perspective, an analysis of the ways in which legal orders are structured to face emergencies was undertaken, especially from unitary or dual models of emergency leal provisions, whose distinction lies in the existence, or not, of specific legal instruments, different from the ordinary ones, to allow state action aimed at overcoming crises. With these premises, the investigation turned to the analysis of the treatment given by the constitutional tax system to facing critical situations, beginning with the study of the rules of extraordinary tax competence, an institute expressly supported by the 1988 Constitution. It was also analyzed the possibility of legislative creation of other tax institutes specifically aimed at dealing with emergency situations, both those of a permanent nature within ordinary legislation and those instituted only by virtue of a specific emergency. In this regard, tax exemption measures aimed at reducing the fiscal burden in critical periods, which were not expressly dealt with at the constitutional level, gain special importance. Then, the study turned to the analysis of the performance of courts regarding tax measures related to crises, in order to ascertain, in light of the rigidity of the tax constitutional system, what roles are to be exercised by judges in this context. It was sought to show that the judicial treatment of crises in tax matters is mainly focused on the control of emergency measures and the analysis of individual cases. At the end of the study, it was concluded that the constitutional tax system has different levels of legal accommodation of emergency situations, allocating at the constitutional level measures that enable the increase in tax collection and leaving to legislative deliberation forms of tax exemption aimed at facing crises, without losing sight of the role reserved for the courts regarding the control of emergency measures and the individual analysis of conflicts arising therefrom, subtracting from the courts deliberations of a general and abstract character for the return to normality