A (in)compatibilidade da reforma tributária com o pacto federativo : análise crítica da EC 132/2023 e da LC 214/2025 à luz dos limites do poder de reforma

Abstract

The present study focuses on analyzing the compatibility between the tax reform implemented by Constitutional Amendment No. 132/2023 and Complementary Law No. 214/2025 and the essential core of the Brazilian federal pact, as protected by the entrenchment clause inscribed in Article 60, Section 4, I, of the Federal Constitution. The deductive method was employed, starting from the conceptual delimitation of the essential core of the national federation to then proceed with a systematic examination of the transformations introduced by the tax reform. The investigation established that the essential core of the Brazilian federation is articulated primarily around two fundamental axes: on one hand, the autonomy of federated entities - manifested through the capacities for self-organization, self-government, self-administration, and self-financing -; on the other, their participation in the formation of national will. The analysis of structural changes promoted by the reform - which replaces five consumption taxes (ICMS, ISS, IPI, PIS, and COFINS) with a dual-VAT system (IBS and CBS) complemented by the Selective Tax - revealed the existence of thirteen alterations of significant impact: three fundamental qualitative violations intertwined with ten quantitative centralizations that compromise, to a greater or lesser degree, all dimensions of federative autonomy and participation. The main violations identified include: the complete usurpation of the original tax competence of subnational entities, operating a complete transfer to the National Congress of the definition of the IBS normative structure; the material elimination of the expression of subnational entities' will within the Harmonization Committee; as well as the systematic asymmetry of deliberative criteria in the IBS Management Committee. The convergence of these alterations - it is argued - transforms federated entities into mere administrative executors of tax policies entirely conceived and defined by central power. It is concluded that the tax reform under examination qualitatively compromises the Brazilian federal pact as established by the original constituent, constituting an attempt to abolish the federative form of State in frontal violation of the corresponding entrenchment clause. This is because it systematically transcends the constitutionally admissible limits for the exercise of reform power, affecting the intangible core of the national federation.