A CONSTITUIÇÃO DO FATO JURÍDICO TRIBUTÁRIO PRESUMIDO E SEU ENSEJO À TRIBUTAÇÃO: UMA ANÁLISE ACERCA DA ADEQUAÇÃO DO LANÇAMENTO “POR PRESUNÇÃO” AO ORDENAMENTO JURÍDICO PÁTRIO

Abstract

The present work is part of the tax law area and aims to analyze the figure of the launching “by presumption”, thus understood the individual and concrete norm that formalizes the tax claim based on a tax legal fact whose occurrence is presumed, and its adequacy to the Brazilian legal system. The problem is imposed because the credit requirement, under the terms of articles 142 of the National Tax Code and 9th of Decree n. 70.235/72, arises from a binding administrative act that requires proof of the subsumption of the taxable event to the hypothesis described by the incidence-matrix rule. In this sense, blindly admitting the validity of the assessment motivated by presumption and its aptitude to generate rights and duties would enable the illegal and confiscatory taxation, going against the principles that guide the tax law, hurting the rights of the taxpayer and representing a danger to the law system and to the society. Notably, the presumptive technique cannot be used for the good pleasure of the public authority; its use, however, is very positive for the tax legislation, giving it applicability, promoting the increase of collection and combating fraudulent practices. Therefore, we seek to harmonize the use of presumptions with the values and limits present in the Constitution and in the infra-constitutional provisions, so that this logical operation facilitates and assures the production of the credit constitutive act, through the constitution of the presumed tax legal fact. Starting from the administrative procedure that aims to prepare the launching and the importance of the proof for the tributary imposition, this work brings as a general verification the necessity of the proof of the presumed fact, through the confirmation of the indicative facts related to it, to authorize the presumption of the occurrence of the taxable fact, and the conformation of the presumptive enunciation to the antecedent of the rule-matrix of incidence in order to glimpse the harmony of the launching “by presumption” to the system of law, to entail a legal, reasonable and fair obligation, capable of serving the public interest without infringing the guarantees of the taxpayer and maintaining social stability.