Tributação e meio ambiente: uma análise dos benefícios fiscais concedidos no mercado de agrotóxicos à luz dos princípios constitucionais tributários e ambientais e reflexos na ADI nº 5.553

Abstract

The aim of this paper is to outline an analysis of the tax benefits principles granted for products and services linked to pesticides in Brazil through Agreement No. 100/97, which was renewed in April 2020 - whose purpose is to reduce the ICMS calculation base in 60% at the exit of agricultural inputs - and Decree No. 8,950 / 2016 - which sets zero rates to the IPI on pesticides arranged in a list attached to the device under discussion. That said, this issue came into the spotlight when the PSOL filed a Direct Action of Unconstitutionality so that the abovementioned legal devices were understood as unconstitutional. This is ADI nº 5,553, which entered the agenda at the STF in October this year. The objective is, therefore, to investigate the devices and the technical and motivating principles that gave rise to the analyzed exemptions. Then, the analysis starts from constitutional tax principles, such as the principles of selectivity and contributory capacity, and from environmental constitutional principles, such as the principle of prevention and precaution and the balanced environment for present and future generations - in addition to rights such as the valorization of human work and the right to health - to verify the contours of legality and constitutionality of tax waivers. Firstly, the tax scenario is outlined regarding taxes, powers, principles, limitations on the power of taxation and the possibility of inducing rules in tax matters, referred here as extrafiscality. This is done to demonstrate the state of the art of the legal devices in question. Secondly, the work seeks to evaluate, from a rational environmental perspective, how taxes, which have an extra-fiscal character, act to guarantee the principles of the Federal Constitution. In this sense, analyzes of the effects of tax exemptions in society are outlined, which format of agricultural practice it fosters and what are its consequences for the environment and for the human family. Furthermore, in the third moment, understanding that the tax rules must be linked, beyond the tax principles, to the principles of the Economic Order and all the others recommended by the Constitution, the work proposes to verify the (un)need(ed) for exemption policies whose scope is to favor trade and production of pesticides. Finally, in the light of all the above, try to draw an overview of the data collected from the review of the diverse literature, technical reports and even official documents attached to the ADI records No. 5.553 to point out the state of the art of the subject analyzed and its appreciation by the Supreme Court.