A multa tributária e sua adequação ao princípio da vedação à utilização de tributo com efeito de confisco

Abstract

The State exists to promote social welfare, development and benefit sharing. The exercise of this task gives rise to the competence to demand financial resources from individuals and to stipulate sanctions in the event of eventual non-compliance. By attributing tax competence to the entities of the federation, the Constituent Power conditioned its exercise to the observance of the Taxpayer Statute, which is a set of legal criteria that make up the contours of this competence. Among these criteria, the constitutional rule that forbids the use of tax with confiscatory effect stands out. Because it is a rule, this rule is applied based on subsumption. If a rule that offends it is published, both the Tax Administration and the Judiciary must act in control of constitutionality, rejecting its application. Fines are classified into three types: Moratorium Fines, fines for non-payment and fines for non-compliance with an accessory obligation. The incidence of the prohibition on the confiscatory effect of tax fines must consider the legal nature of each one of them. The Moratorium Fines have an exclusively punitive legal nature. Fines for non-payment and fines for non-compliance with an accessory obligation, on the other hand, have a hybrid nature, as they are both punitive and indemnifying. Therefore, the prohibition of the confiscatory effect applies with the utmost rigor to the institution and collection of Moratorium Fines. On the other hand, on fines for non-payment and fines for noncompliance with an accessory obligation, the prohibition of the confiscatory effect must apply in a moderate way, reaching exclusively its punitive nature. With that, we make this constitutional rule compatible with the principles of equality and free competition. Based on these premises, the following scientific criteria were deduced, the observance of which may help in the application of the prohibition to the confiscatory effect of tax fines: Principle of reasonableness; Level of collaboration and transparency of the Tax Administration with taxable persons; Tax amount not collected as a reference for the calculation; Economic capacity of the offender; Phase of the collection procedure and means of performance used; Risk of decay; Criteria applicable exclusively to fines for non-compliance with an ancillary obligation.