Desenvolvimento regional brasileiro e incentivos fiscais: os efeitos econômicos de uma política de incentivos como condicionantes de sua constitucionalidade. Uma proposta de governança para a gestão eficiente das políticas públicas de incentivos fiscais

Abstract

The brazilian Constitution raised the development to a high degree, considering it a fundamental objective and choosing tax incentives as one of the instruments to reach it. That said, one wonders: if the economic effects of an incentive point to its ineffectiveness in reducing the imbalance of regional socio-economic development, should it continue to exist, regardless of whether legal formalities have been respected? The general objective is to examine the legal repercussion of the economic effects of tax incentive policies on Brazilian regional development, drawing on the multidisciplinary dialogue to design, evaluate and execute effective and efficient fiscal incentive policies. Specific objectives include: a) examining the Brazilian regional development, understanding its roots and the fundamentals of the national development policy, elucidating its concepts to focus on the one that proceeds through public policies of fiscal incentives; b) discuss fiscal incentives based on their final character and, defined as effective incentive, reflect on some consequences of their inefficiency, trying to outline a framework based on criticism from national and international experts; c) in view of the indispensability of efficient incentives, in addition to being effective, the adequacy of the corporate governance model to the management of fiscal incentives policies is discussed. It will be used bibliographical and documentary methodology. The Constitution allows the granting of tax incentives to promote the balance of regional socio-economic development, the purpose being the characterizing element of the incentive. Therefore, it is considered unconstitutional incentive policies that do not achieve the objectives that are proposed. It is essential, therefore, to broaden the epistemological spectrum of the science of Tax Law and consider an economic analysis of the Law. The ineffective fiscal incentive, therefore, understood as the one that did not fulfill the pre-established goals between the grantor and the taxpayer, according to predetermined evaluation parameters, must be invalidated by the entity that granted it. Prior to this, the Administration must, however, in a transparent and responsible manner, dialogue with the taxpayer, adjusting the terms of the incentive, in order to arrive at a solution that safeguards the treasury and respects the taxpayer's confidence in the State. If it is not sufficient, it must be invalidated, inclusive and, in some cases, granted in the right term and under an onerous condition. It is not reasonable to take the ultimate consequences of protecting the taxpayer's confidence in the State, giving preference to the reason for the incentive and other principles and values - such as the principle of efficiency and the indispensability of fiscal balance in the state budget. This invalidation presupposes the indemnification of the taxpayer. And because efficiency, besides the effectiveness, of fiscal incentives is essential, it is proposed that the corporate governance model be adapted to public management, specifically to the management of fiscal incentives policies. Implementing good governance practices in the granting, evaluation and monitoring of incentive policies will certainly result in more effective and efficient incentives, in addition to transparency and more accountability.