Modelo cooperativo de interpretação da legislação tributária: uma proposta de prevenção de litígios entre fisco e contribuintes

• Autor(a) principal: Serpa, Lyvia de Moura Amaral
• Data de Publicação: 2016
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9762
• topic: Tax Law; Interpretation; Prevention of litigation; Cooperation between tax authorities and taxpayers; Direito tributário; Interpretação; Prevenção de litígios; Cooperação entre fisco e contribuintes; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

This study aims to develop a cooperative model of interpretation of tax law to prevent litigation between tax authorities and taxpayers. The currently existing mechanisms in our country are not able to do this, as there is no satisfactory dialogue and agreement between tax authorities and taxpayers, what results in an over-judicialization, inserted in a context of judicial crisis. With the publication of the Laws 13.105/2015 and 13.140/2015, it is necessary to review the litigation culture and the over-judicialization also by the public entities, that are among the largest litigants of the country, and this review should also reach the Tax Law. The proposal considers the possibility of amicable setting of the interpretation criteria of tax legislation, based on a joint interpretation of the sole paragraph of the article 100, the article 146 and the article 171 of CTN, in the light of Constitution. Are identified, also, as requirements the opening of the tax administration to civil society participation, the transparency of actions taken in a climate of dialogue between tax authorities and taxpayers, also as the obligation to interpret the legislation in the light of Constitution and the observance of principles of legality, equality and efficiency. To the design of this cooperative model of interpretation of tax law, institutes already developed in our country are considered, such as the external public consultation, as spelled out by Ordinance RFB 35/2015, and the preventive transaction that was inserted in the draft law of tax transactions, highlighting the topics that deserve being corrected or improved. It is adopted as a reference the theory of legal argumentation and the rational legal speech, the techniques of negotiating agreements without giving in and mediation, also as the amicable procedure to solve the disputes related to the construction of the agreements to avoid the double taxation, the existing procedures in United States of America and the tax arbitration that exists in Portugal.