Modulação de efeitos em matéria tributária: ofensa a preceitos do ordenamento jurídico?

Abstract

This study seeks to explore the possibility of modulation of effects of decisions responsible for declaring the unconstitutionality of a certain rule in tax matters, in view of the protective nature of the constitutional tax principles linked to the protection of taxpayers' rights and guarantees. Subsequently, the study intended to analyze the main arguments used in requests and determinations of effects modulation in tax cases judged by the Federal Supreme Court. Based on this analysis, considerations were made about the effects, positives and negatives, of the most recent decisions rendered by the highest Court in the country, in order to verify whether the assumptions present in article 27, of Law 9,868/1999 were, in fact, verified. The work was based on the principle of protection of legitimate confidence in tax matters, an indispensable element in the quality of the relationship between the State and the citizen, as taxpayer. At the same time, it was sought to discuss the need to use the weighting (proportionality and reasonableness) between the principles established in our legal system, always aiming to protect the taxpayer against acts issued by the State. Note that, by the very legal delimitation, there are situations in which the modulation of effects regarding the decisions handed down by the Supreme Court is necessary, or even inevitable. From this standpoint, the study aimed to explain the need for well-founded decisions on this point, in order to ensure that the constitutional principles are not distorted, generating tax anomalies