A impossibilidade de a administração tributária, no exercício da função judicante, apreciar a constitucionalidade das leis em que se fundam os atos de imposição tributária

Abstract

This paper intends to deal about a subject which has been highly commented in the field of science and in the administrative courts and yet not entirely pacific. The subject regards the possibility of administrative courts of revenue control the constitutionality of bills that legitimate an administrative act of tributary imposition. In this paper, it is searched to demonstrate that the legal system, despite the heavy academic and teaching fields that supports the opposite, it is not a revenue prerogative, mainly because the legal system, when defines the normative profile of the constitutional control of the bills as an exclusive power of the Judiciary, makes this subject restricted to only judicial ruling. With this mind, through a revision of the most traditional papers about the subject in hand, this research, that has no intention to conclude the obstinate argument, tried to contribute to this argument proposing a legal assumption in order to demonstrate the impossibility of the Revenue use such prerogative, even when ruling administratively, over all because the absence of legal competence to do so, having narrated for a better understanding of the matter, about the profile of the Brazilian tributary administrative process, about the principle of legal defense and contradictory, as well about the current constitutionality control system. At the end, for closure and curiosity regarding the subject, the paper has been ended on academic, administrative and precedents aspects which seemed relevant to the matter in hand.