The Application of General Constitutional Principles Governing Taxation to Control Tax Exemptions Pursuant to Precedents of the Supreme Court of Brazil
Juliana Bastianello Baldin Martins, Director, GTIS Partners LP, Brazil
The purpose of the paper is to analyse how the Supreme Court of Brazil applies general tax principles to control tax exemptions. More specifically, the paper envisions to answer whether, based on the Supreme Court of Brazil’s view, tax exemptions can be granted, extinguished or modified according to political criteria, without consideration to general tax principles. For that, the application of four general tax principles commonly referred by Brazilian scholars will be analysed: rule of law, equality, non-retroactivity and anteriority. Other principles, such as the principles of the capacity to contribute and the prohibition of confiscatory taxation, which are also general tax principles under Brazilian constitution, will not be analysed. After a brief introduction, the paper brings an explanation of the legal classification of tax exemptions, as well as of the four principles to be considered, pursuant to Brazilian law. Then, decisions issued by the Supreme Court of Brazil with respect to tax exemptions will be analysed. Finally, conclusions will be drawn in order to identify the tendency verified in the decisions of the Supreme Court of Brazil regarding the application of general tax principles to control tax exemptions.
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