Modulação dos efeitos da declaração de inconstitucionalidade de norma tributária e sua relação com as garantias dos contribuintes

Abstract

This paper investigates the repercussion that the modulation of effects of the declaration of unconstitutionality of tax norm entails in the taxpayers individual rights. After presenting historical and doctrinal aspects about the fundamentals and principles of Tax Law, we proceeded to study Constitutional Law, verifying its characteristics and the effects produced by the declarations of unconstitutionality of laws and normative acts, with special attention directed to the modulation of these effects. Having established the doctrinal boundaries, we analyze a selection of judgments produced by the Supreme Court, where the theme related to the modulation of effects of the declaration of unconstitutionality of tax laws arise. Comparing the content of two of these decisions and the theoretical foundations presented above, we conclude that the Federal Supreme Court, by prohibiting a category of taxpayers from obtaining restitution of property values that were unduly owned by the Treasury, did not act in accordance with the Constitution Federal law, since it failed to comply with basic obligations that it should observe in the exercise of constitutional jurisdiction. Along with some of the suggestions presented, the conclusions we have reached are listed, including the fact that there is no constitutional support for the judicial decision that removes the taxpayers right due to modulation of the effects of a declaration that recognizes unconstitutionality of tax rules