Imposto de renda e desapropriação: aspectos polêmicos

Abstract

The Income Tax is one of the most money collecting taxes in Brazil. Its incidence is thus a matter of great relevance and repercussion. On account of this, the present monograph discusses the need for collecting this tax over compensation for expropriation. Its goal is to evaluate whether the fair compensation for expropriation reception may bring, on the phenomenal world, the legal tributary fact abstractedly anticipated by the tributary hypothesis of the Income Tax. Bibliographic methodology was employed, by jurisprudence and country legislation research. The expropriation procedure demands a compensation to the expropriated subject, in a fair way, for the monetary damage, so that the subject do not experience any net assets value decrease or increase caused by the expropriation. For that reason, law doctrine fiercely defends the notion that this compensation do not bring new assets, but simple replacement of previously existing property. Thus, one shall not call this an income, which is the essential material criteria for Income Tax definition. Brazillian federal tax authorities, however, based on the Income Tax Ordinance, instruct the tax payers to declare, as property increase and subject to Income Tax incidence, the monetary difference between the expropriation value and the original price payed for the expropriated asset. Jurisprudence from Law Courts and the former Tax Payers Council and the current Administrative Tax Appeals Council decisions adopt the idea that reducing the compensation for expropriation value, by the Income Tax incidence, goes against the fair compensation Constitutional principle and so this loss must not happen. By evaluating the tax incidence phenomology, one would infer that there is no perfect identity between the fair compensation for expropriation and the tributary hypothesis of the Income Tax. The needed event for the legal tax relation to ensue does not exist and so does not the obligation to pay the tax.