Do princípio da legalidade tributária e a inconstitucionalidade da cobrança da taxa de emissão de passaporte comum para brasileiros

Abstract

The present study aims to analyze the principle of legality within the tributary matter in order to ascertain the legal basis for the payment of the passport fee in the Brazilian legal system. Since its origin, the principle of legality represents a limitation of the taxing power of the State and, therefore, constitutes a guarantee to the taxpayer, who can only have its patrimony diminished if imposed by the legal institution of a tribute. Besides the requirement of procedural and substantive law, for the institution of the tribute, it is required the definition of the elements necessary for the identification of the tribute, which are taxable event, active subject, taxpayer, tax base and tax rate. The rate, whose taxable event consists on the regular exercise of “police power” or on the use, actual or potential, of specific and divisible public service, ought to respect the principle of legality. Therefore, the collection of the rate is only due in accordance with the principles of legality and typicality. The Brazilian passport fee, which consists on the exaction charged when the passport is requested to the Federal Police Department, does not have, in its legal basis, however, the requirements of the principle of legality. Thus, the disregard of this principle culminates with the unconstitutionality of this fee.