Breve estudo sobre o princípio da capacidade contributiva

Abstract

The legal standard is extracted from the text of law, placed in the right put by the legislator in order to guarantee the minimum to be observed by persons and entities for the free exercise of their rights. The principles, in turn, are legal standards whose axiological connotation establishes the guidelines that shall be observed by the other norms of the system and, for that reason, it has a fundamental importance in the composition of a legal system. The principles are different from the other standards because they express fundamental values, therefore, they are in a higher position than the standards, besides, they have an open structure, while the other standards have closed structures. In this sense, the Constitution guarantees applicability to the principles not only in the sense of programmatic guidelines, but as binding norms that shall be obeyed by the infra-constitutional legislation, by the state bodies and other law enforcers. And among the countless existing legal principles, there are those that are turned to the specific purpose of establishing guidelines in tax matter, in order to establish limitations to the State’s tax enforcing power. The principle of equality determines that the equals shall be treated in an equal manner and the unequal persons in an unequal manner, for the characterization of the principle of tax equality. So, under the scope of tax law, it is important to identify the proportionality of the standards for the different taxpayers, its receptors. Thus, the contributive capacity principle arises as consequence of the tax equality principle, and as guideline so that the legislator chooses events to compose the triggering event that represent richness signs, causing, whenever possible, that the tax burden observes the peculiarities of each taxpayer. In this sense, it is important that the legislator identifies adequate facts to give rise to the tax obligations and capable of being measured according to economic parameters. And to that end, in addition to the election of triggering events that demonstrate richness signs, in order to make possible an adequate distribution of burden between taxpayers whose economic capacity is different, i.e., in an equitable manner, it is necessary that the legislator identifies calculation basis that are capable to measure the taxpayer’s capacity to support the charge and, still, aliquots capable of equate such burden. Finally, it is worth mentioning that the extrataxation, even if justified with the purpose of realization of the equality principle, clearly relativizes the contributive capacity principle, since it aims at benefiting people that have capacity to contribute and, especially for that reason, shall be cautiously used by the State