Presunções no Direito Tributário: aspectos teóricos e práticos

Abstract

The present work intends to shed light on the development of the theme related to legal presumptions in Tax Law, in order to offer scientific criteria for using and controlling them. As we will see, we will identify them as prescriptive propositions that supply the impossibility of producing direct evidence about the factual occurrence of the event described in the typical legal fact, for the purpose of valid triggering of the tax obligation. It is undeniable that the assumptions contribute to the effectiveness of the collection activity, simplifying the collection, allowing a certain fact to be known, through the indirect production of evidence. On the other hand, they are sometimes used by the Tax Authorities to justify arbitrary practices, and, in this sense, they must be repudiated, for departing from the rule of law. In order to reconcile the constitutional rights conferred on taxpayers with the public interest of the collection, the theme of legal presumptions is put, where the intention is to analyze the species validly existing in our system, the hominis and the relative ones, highlighting that both have evidential procedural nature. Then, we will dedicate our attention to the identification of criteria to be necessarily observed, by the Administration, when issuing hominis presumptions, ending with practical analysis; soon after, we will discuss the relative assumptions, and in this step, numerous examples found in positive tax law will be offered, studying them one by one