A competência tributária na produção e no controle normativo: da repartição constitucional das competências tributárias na Federação brasileira ao seu (in)exercício pelos entes políticos municipais

Abstract

The object of this research, the role of tax legislative competence in the production and control of positive tax law through sharing these constitutional competences in the Brazilian federation, derives from the deconstruction that the exercise of these competences are optional. It is argued here that it is necessary to assess the case if the taxing power exercise is optional or mandatory. Therefore, only in cases where the exercise of the power to tax is mandatory and not imposing their taxes we see true legislative omission, subject to judicial control, among other penalties, such that the seal of transfer of voluntary transfers. We taxation in close relation to fundamental rights, enabling the effective protection of the right to liberty, and which implies the guarantee of all other rights, since they all have a cost. So there is no absolute protection of private property and unrestricted justifying political entities not to arbitrarily tax. It is necessary that the no imposition be justified. It is argued here compliance with the requirements listed in the Fiscal Responsibility Law (Law 101/2000). We intend, however, to set limits to judicial intervention. In this sense, there is compliance with the tripartition of functions, in line with the requirements of a state that is democratic. We must, instead, consider the constant tension of taxation while ensuring freedom, effecting other fundamental rights and suppressing freedom (e.g.: not observing the existential minimum, the ability to pay and other constitutional guidelines).