PROHIBITION OF TAXES WITH CONFISCATORY EFFECT

(IN)APPLICABILITY TO FINES AND EVOLUTION OF CONSTITUTIONAL JURISPRUDENCE

Abstract

The prohibition of using taxes with confiscatory effects is a constitutional guarantee enshrined in the Federal Constitution of 1988, solemnly incorporated into the list of limitations on the power to tax. Despite sensitive and still unresolved issues regarding the interpretation and application of the constitutional provision fraught with a high degree of conceptual uncertainty (art. 150, item IV), the principle of non-confiscation has ended up acquiring contours that are better defined by recent judgments of the Supreme Federal Court. The research proposes, in this sense, based on the legal framework of general repercussion as an instrument of procedural harmonization, to explore the evolution of constitutional jurisprudence, with a focus on the examination of decisions and, above all, of themes involving the principle of non-confiscation, affected in extraordinary appeals, when they go beyond the subjective interests of the case, presenting relevant questions from an economic, political, social or legal perspective. Given the theoretical premises presented, collected from reputable doctrines, the research seeks to investigate the state of the issue regarding the constitutional tax principle, considering the proliferation of themes with general repercussions that have become an indisputable reality. However, the established theses are based, above all, on the measurement of tax fines, which, despite the consolidated understanding within the Supreme Court, should deserve a more adequate justification, different from that which limits the power to institute taxes.