Imunidade tributária religiosa : cláusula pétrea ou norma constitucional revogável?

Abstract

This work seeks to analyze if the religious tax immunity, contained in the article 150, VI, "b", of the Brazilian Federal Constitution of 1988, can be classified as an intangible clause and to define the correct meaning and reach of this norm. This research is important, not only considering the doctrinal divergence about the subject, but also the opinion of a part of the society, which struggles for the repeal of the said device, once they conceive it as a fiscal privilege, that would be in disagreement with the postulates of equality and tax justice. To reach the scope of this study, it was necessary to examine the history and the purposes of the constitutional rule in question; to define the meanings of the terms "religion", "temple" and "worship"; to analyze the legal nature of the religious tax immunity and whether its existence is capable of injuring the principles mentioned above. It was also verified which interpretive method best meets the constitutional will and what are the consequences of conferring an extensive interpretation to the religious immunity. From this, we tried to verify if the nonconformity with the prediction of the immunizing standard is reasonable and if there is the possibility and the necessity to promote its extinction. To that end, varied sources were used, such as doctrinal, legislative, journalistic and jurisprudential. It was seen that the religious tax immunity aims to safeguard freedom of belief and religious manifestation, as well as state secularism, being classified as a subjective public right of the taxpayer and, thus, as an intangible clause. Also, it was found that the prediction of this tax exemption is incapable of offending tax justice and equality, since the values it protects are enough to justify its existence. Hence we concluded that since the immunizing standard cannot be revoked by the derived Constituent Power, and since there is a need to harmonize its existence with the context in which it operates, where there are many fraudulent situations and tax evasion, it is imperative that the interpretation of the rule does not disregard the factual circumstances that surround the norm, what values are being protected, as well as potential offenses to other equally constitutional values. Only the analysis of all these factors will enable the correct application of religious tax immunity, which cannot be used indiscriminately, as a way of not weakening its purpose.