Benefício fiscal pecuniário autônomo prévio: teoria normativa e a prática das concessões no ICMS

Abstract

The tax transfers resources from individuals to society, financing the State established by it. The tax benefit goes in the opposite direction, transferring resources from the community to individuals or groups, reason why its concession is surrounded by restrictions stipulated in the Federal Constitution, the Fiscal Responsibility Law and the National Tax Code. The expression tax benefit suffers from significant imprecision, being confused with tax incentive, tax exoneration and tax expenditure. Thus, the question is: is it possible to formulate a rigorous conceptual definition of the tax benefit object, particularly, of the segment here called Prior Autonomous Pecuniary Tax Benefit – PAPTB? This essay aims at its definition and systematization, searching elements in legislative hermeneutics, jurisprudence and doctrine. This top-down view is confronted with another, bottom-up, resulting from the examination of empirical evidence of concessions made within the ICMS framework, using as sample space the sixteen states of the South, Southeast and Northeast regions, covering the period of the last two decades. By choosing this target, Complementary Laws 24/1975 and 160/2017 were drawn to the investigative radar. In terms of methodology, it employs bibliographic research and documentary research procedures with support of qualitative approach method and content analysis technique. With regard to the examination of the practice of concessions, it uses the hypothetical-deductive method, with a quantitative approach and statistical analysis techniques. The final product of the research is the definition of the object of study, the class of benefits granted in the scope of the exercise of the tax competence of the federated state, whose repercussion occurs in a moment prior or concomitant to the constitution of the credit, resulting in the reduction or suppression of the pecuniary amount. As a spinoff of the cognitive approximation process, the research draws the following conclusions: the state financial autonomy is heavily dependent on ICMS revenue; the state tax revenue is directly influenced by its own GDP performance; the budgetary costs of tax benefit concessions are weighty for the states; the waiver of tax revenue shows no correlation with the tax revenue; the formal requirements have not been observed in the concessions of tax benefits; and, the accountability of the tax expenditures shows no transparency in fiscal management.