La transacción tributaria en el escenario de los ordenamientos jurídicos español y brasileño: viabilidad constitucional y reflejos en la conflictividad

Resumo

Considering the scenario of the Democratic State of Law, like Brazil and Spain, the increase of the number of conflicts in the scope of Taxation reflects the need for the completion of the present mechanism of judicial resolution of taxation with instruments of prevention and more effective resolution turned to the consensus of the parts involved. However, to introduce consensual techniques in the context of taxation techniques implies overcoming some paradigms which might be found when we adopt a classic positive concept of Law. When attempting to broaden a less belligerent posture in the context of administrative activity, we might ask: Is the introduction of consensual techniques in taxation compatible with the principles of legality, equality and unavailability of taxation credit and the effective judicial protection? In the present investigation, though we don’t aim at exhausting the totality of derivations aroused by the theme, we attempted to provide a solution to the mentioned problems by using as an environment of research the judicial environment of Brazil and Spain and by aiming at an interdisciplinary sense so as to reach a link with Justice, mainly the phatic situations in which the legislator uses the mechanisms of indirect potestative transferences to overcome the real impossibility of legislating in details all the facts liable of being the object of taxation. Nowadays it is more and more frequent the presence of undetermined judicial concepts in the legislation. Besides, it happens more and more frequently for the law to permit the public agents to act with a certain margin of administrative discretion, so as to meet factors of convenience and opportunity which must be guided by public interest. It is precisely on these two mechanisms or legislative techniques that we place the possible insertion of tributary transaction in the context of Taxation. In order to point out the practical importance of the institution of taxation transaction, we will centralize the purpose of our research on the ones already existing in these two countries, by pointing out the fact that the increase in the number of taxation conflicts is closely linked to the present crisis of inefficiency of the functions individually assumed by the State, thus being indispensable the adoption of new attitudes towards the performance of public fiscal interest. Thus, criticism and constructive propositions will be made for the use of taxation transaction so as to point out the true and essential purpose of the existence of taxation law itself: the social pacification through the fiscal justice.