EFEITO CONFISCATÓRIO EM MULTAS ISOLADAS

Abstract

Limitations on the power to tax are fundamental guarantees for taxpayers, and among them is the principle of prohibition of confiscation, with explicit constitutional provision. The prohibition of confiscation also encompasses tax fines and must pay special attention to their quantification regarding isolated fines for non-compliance with ancillary obligations that do not imply a detriment to the collection or determination of the amount of taxes due. Through doctrinal bibliographical research, analysis of current legislation, and decisions of higher courts, this study seeks, through the deductive method, to determine how the incidence of the prohibition of confiscation principle occurs in isolated fines, with special attention to the calculation basis. This analysis will demonstrate that disproportionality in the amount of pecuniary sanction and the confiscatory effect occurs in isolated fines when widely expanded calculation bases are used, such as the transaction value or the amount of the tax, proposing that fixed values of fines be used for such sanctions, which do not imply losses to tax collection, scaled in progressive ranges, which may be based on the transaction value, tax due, or company revenue. The study also shows that decisions of higher courts have been contrary to the position advocated here, but since the topic is currently under new analysis in the highest court, it is hoped and awaited that the understanding of this court will evolve to adopt a stance in favor of protecting the fundamental rights of taxpayers, especially proportionality and the prohibition of confiscation.