Forma e sentido do tributo no estado brasileiro : estudo à luz da teoria dos sistemas sociais de Niklas Luhmann

Abstract

Based on normativist or hermeneutic epistemological matrices, the study of Brazilian tax law, based on conceptualist and structuralist dogmatics, does not privilege the correlation of revenue with public expenditure, a problem that hides the paradoxes of the tax phenomenon, the consequence of which is to remove from the taxpayer an important instrument of active citizenship. In this study, the object is the tax, aiming to construct a systemic explanation of the tax phenomenon, in order to demonstrate its complexity and identify the tax as a form of meaning (Spencer Brow and Niklas Luhmann), as a recursive communication of the political, economic and legal systems of society. The research questions are revealed in the following questions: a) What is the meaning of the tax?; b) How does the tax mean to the different parties involved in the taxation activity?; and c) Are the doctrinal and legal concepts of tax sufficient to express this meaning? The consideration of tax within the scope of the analytical category “form of meaning” highlights both the marked side of the form (the tax and its rule of incidence) and the unmarked side (the non-tax, the rule of non-incidence) and exposes the communicative events in the context of the objective, temporal and social dimensions of the meaning of the tax, without prejudice to the flow of normative expectations and memories underlying the tax phenomenon. The systemic focus of the tax study justifies the research implemented, especially at a time the country is going through, involving a substantive tax reform, whose effects for complete implementation will last for fifty years. The hypothesis is that the study of tax, based on the conceptualist perspective and the matrix rule of tax incidence, although it allows the construction of meaning of the tax phenomenon, is, for this purpose, insufficient, with the analytical category of systemic matrix “form of meaning” being more appropriate, given the holistic vision that it implements. To achieve the results obtained, the systemic-functional method was used, with a constructivist matrix, using Niklas Luhmann’s theory of social systems as its epistemological basis. The reflections indicate that, from the perspective of the economic system, the tax, equated to a price, operates in its money medium, ensuring the success of economic communication of a tax nature. Through the autopoiesis of the political system, it conveys selective choices, using the language of an extract of political power (the power to tax) as a medium. From the perspective of the legal system, the tax is a temporalized communicative event, expressed in legal norms that stabilize normative expectations, built in the process of functional differentiation in the transition from the patrimonial State to the fiscal State. The study of tax, as a form of meaning within the communication of the democratic constitutional fiscal State of law, enables an understanding of the activity of taxation that goes beyond the strict rationality of normativist or hermeneutic epistemologies and brings revenue closer to public expenditure and the tax law to the financial law, in a recognition of the State’s financial activity as a unit of communicational meaning, based on the teleology of the financial and economic constitutions.