Reflexões críticas sobre a arbitragem no direito tributário

Abstract

The present study aims to examine the legal feasibility of using arbitration in tax matters as an instrument of effectiveness of the tax constitutional system, given that the contingency present in tax law ends up violating several constitutional principles. Thus, an overview of the situation is drawn, presenting the possible causes that have triggered these violations and the methods in wich arbitration can be used to alleviate potential legal action. Taking tax policy into consideration, it is essencial that an analysis of any possible institutional arbitration involving tax credits is composed of important constitutional principles including the principle of practicability, efficiency, legality, legal certainty, and unavailability and the supremacy of public interest, not to mention the ways in which such principles are positioned within the legal system. We must also take into consideration that the institutional arbitration may heavily impact tax obligation. It is impetative to contextualize the dynamics of the legal system relative to that of the taxation system. A focus on formalizing the individual and concrete norm assessment and the possibility of decision making through arbitration which can modify it. Finally, some considerations are made about possible arbitration models related to tax of arbitration could be implemented in Brazil, such as the body for its conduct, the arbitrators and some procedural issues