O papel fundamental dos Tribunais locais na construção do Direito Tributário à luz das decisões proferidas pelos Tribunais Superiores nos casos representativos de controvérsia

• Ano de defesa: 2016
• Autor(a) principal: Souza, Fernanda Donnabella Camano de
• Orientador(a): Gonçalves, José Artur Lima
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Tribunais locais; Direito tributário; Supremo Tribunal Federal
• Palavras-chave em Inglês: Local Courts; Tax Law; Federal Supreme Court
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/19242

The purpose of this study is to demonstrate the rationale of the process of judicial decisions in tax matters, supporting the view that the true creation of Tax Law by the Judiciary Branch is in the hands of local Courts, given that they are the ones that have full access to the facts of the case, and upon which it is incumbent to examine the evidence and (re)discuss it; that is where the actual procedural dialectic between Tax Authorities and Taxpayers takes place, and they are the venue with jurisdiction to appreciate the thousands of cases stayed by interpretations of the Federal Supreme Court and by the Superior Court of Justice in controversial cases. Thus, the aim of this study is to discuss the process of judicial decisions in tax matters, emphasizing the fact that local Courts produce Tax Law based on the rulings passed by the Higher Courts in paradigmatic cases, demonstrating how a judicial decision in tax matters can be justified as the best and most equitable solution for a concrete case. The study supports the argument that even with the alteration of process rules provoked by the insertion of the controversy analyzed by the Federal Supreme Court and by the Superior Court of Justice in the legal order, the core of the construction of Tax Law still lies in the hands of local Courts, since they have the mission (i) of analyzing the matter as accurately as possible, restricting themselves to the facts of the case, to the Law claimed and to the claim, so that it can be reviewed within the factual and legal framework of the paradigm and (ii) ultimately, of interpreting and enforcing the paradigm decision, thus settling countless of pending suits; i.e., constructing the meaning of the base decision. It is incumbent upon local Courts to “replicate” the paradigmatic decision to pending cases, thus implementing the envisaged stability of Law and ensuring equality and free competition among the numerous Taxpayers who share the ‘same legal condition’. The importance of local Courts also lies in the fact that, although the legal argument translated in the paradigm is the same as the one in the pending case, it is incumbent upon them to verify whether there are differences between one and the other that might result in a legal decision that differs from the decision arrived at in the paradigm case. The construction of the theory of the process of judicial decisions revealed that emphasis is placed on pragmatics, i.e., on the complexity of life in society, and that a myriad of consequentialist arguments are taken into consideration – economic, financial, political, moral, etc. This requires the imposition of limits for decisions of tax nature, limits that are determined by the law and Principles applicable to the case, as proposed by Neil MacCormick, Author whose teachings were adopted in this study. In other words, pragmatic arguments shall only be relevant as grounds for judicial decisions to the extent that they are based on the rules and Principles of law, which results in incorporating their semantic content but not the operation of the system of Law. We have also sought to demonstrate that even though constitutional tax Principles (especially those related to Legality and Equality) should rule the outlines of judicial decisions, additionally to the laws applicable to the case, the fact is that, to the extent that a thesis of well-grounded judicial tax decisions is being formed (whenever the interests of Tax Authorities and Taxpayers are conflicting), the Principles of Morality, Protection of Reliance and Strict Good Faith should be the fundamental tenets in tax rulings in each and every circumstance. The study affirms that rulings are justified when they are based on the law and on the tax Principles that underlie the case, especially the principle of Legality and Equality, but that first and foremost the constructing judicial body should base its decision on ensuring Morality, Protection of Reliance and Strict Good Faith in the relations between Tax Authorities and Taxpayers. When faced with numerous consequentialist arguments (especially of economic nature), such Principles contribute for an equitable solution of conflicting interests (of economic nature, translated as a tax), which can be justified in the universal arena and applied in future cases. And if Local Courts interpret paradigm rulings – and because they should adapt the decisions to the historical and social conditions of their time and also because each interpretation act is unique and renewed at every decision passed -, even when the base ruling was grounded on the arguments that represented the controversy, paradigms cannot be considered eternal. Judicial decisions should have room to reflect the changes of life in society, requiring that consequentialist arguments, rules and Principles be interpreted in accordance with the new social standards, enabling the formulation of new paradigm rulings for future disputes. This reasoning is further corroborated by the fact that the paradigm decision may have misapplied the Law to the dispute, and that there should be the possibility of future corrections, which leads us to the conclusion that local Courts are not absolutely and eternally bound by the paradigm ruling passed by the Higher Courts. Lastly, the study seeks to demonstrate that the rationale of the process of judicial decisions can be dogmatically assessed. Even in the case of final rulings passed by the Federal Supreme Court, Dogmatics can reveal inconsistencies and, given that they are not eternal, decisions are susceptible to questioning and alteration. To that end, Dogmatics contributes to the operability of Law, to the improved materialization of legal rules and, consequently, to the formation of an orderly and rational discourse to be followed by the Courts