O princípio do não confisco no direito tributário

Abstract

The present study seeks to investigate selected tax principles with special focus on non-confiscation principle from a historic perspective and through analyses based on the views held by theoreticians specializing in Brazilian positive law theory, particularly regarding the Federal Constitution and complementary laws. The principle of non-confiscation shall not constitute the sole theme of this study, but will be analyzed as an end goal of our investigation. The study sets out by outlining historical aspects of specific legislation governing tax issues, and subsequently addresses notions held as universal the principles which are embodied in legal texts on tax issues, especially in Brazilian volumes. On a practical level, the study seeks to understand the current Brazilian tax universe in the context of established legislative principles. Delving into the history of law is a pre-requisite to gaining an understanding of this complex issue, where this takes the form of exploring the roots of the treatment given by humanity more specifically by the western European cultures which Brazilians have directly inherited to the issue of principles: what constitutes a principle; the point at which principles begin to gain importance for lawmakers; the aspects that stem from this basal notion, and so forth; in addition to analyzing judicial cases which illustrate the problematic Brazilian tax issue in light of the principles presented. This introductory study would be unable to exhaustively address all principles which lawmakers draw on to legislate, and this, coupled with the academic norms governing analytic graduate research, has limited the scope of this study to a subset of interconnected principles: isonomy, ability to pay, and, last of all, the principle of non-confiscation