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The Application of General Constitutional Principles Governing Taxation to Control Tax Exemptions Pursuant to Precedents of the Supreme Court of Brazil

Abstract

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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Author

Portrait image of Juliana Bastianello Baldin Martins
Juliana Bastianello Baldin Martins
Managing Director - Legal Affairs, GTIS Partners, Brazil

Juliana Bastianello Baldin Martins joined GTIS Partners on May 2011 and is currently a Managing Director at the firm. Mrs. Baldin Martins is responsible for overseeing legal activities in Brazil. Prior to joining GTIS Partners in 2011, Mrs. Baldin Martins was a lawyer at Machado, Meyer, Sendacz e Opice Advogados, one of the largest law firms in Brazil. Mrs. Baldin Martins graduated from São Paulo University Law School (USP) in 2007, completed her Master’s of Business Administration at Fundação Getulio Vargas (FGV) in 2011 and her Master’s in Corporate Law at São Paulo University Law School (USP) in 2022.

Company

GTIS Partners logo

GTIS Partners

With broad expertise in investing, structuring, design, development and asset management, GTIS professionals oversee projects in residential, industrial/logistics, office and hospitality from concept to completion. Today, GTIS is established as a leading investor in the US residential sector, with a portfolio footprint in more than 35 major markets located predominantly in the Sunbelt. In Brazil, GTIS is among the largest private real estate investors with significant experience in the acquisition and development of iconic office, residential, industrial and hospitality assets concentrated in São Paulo and Rio de Janeiro, the most liquid markets in Brazil. As of Q3 2023, GTIS has committed over $6 billion of equity capital or approximately $19 billion in total project cost across the US and Brazil.

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