Competência tributária: fundamentos para uma teoria da nulidade

Abstract

The purpose of this thesis is to study the National Tax System, in its dynamic feature. We define taxation as the act of creating, modifying and extinguishing juridical norms related to the creation, collection and modification of taxes. To create a norm is to realize an act qualified by the positive law as able to insert new prescriptive propositions in the positive law system. This act, as all indeed, can be qualified as lawful or unlawful. We base this work in the hypothesis according to which the tax competence is able to reunite all elements, formal and material, involved in the prescription of how another norm can be produced. We potentialize our research with the use of semiotic instruments. The concept of tax competence was, then, submitted to three studies, named structure, meaning and function. In the structure, we go against the spread idea about the theme and amplify the scope usually granted to the it. We build a sintagma, a logical symbolic model of representation, to represent the competence norm related to form and substance. Following, we pass to the positive law system, its characters of unity, coherence and completeness. By researching the meaning of competence, with the use of definition rules, intertextuallity notions and concept legitimation, we verified how the idea of competence relates with different institutes of General Theory of the State. Further, we defined its concept, classified its species and defined the general lines of its features. Finally, we used all the exposed premises to demonstrate the goals of the competence and, in special, its relation with the validity of the juridical norms. We exposed that, in tax law, the invalidity is the gender of the species: unconstitutionality, unlawfulness, nullity, non-existence, fact error and law error. We concluded that all interest conflicts in tax law involve the use of one of these arguments. And, finally, that all of these allegations have something in common: to express an antinomy between an inferior norm and the tax competence norm