Desvinculação de receitas da União e orçamento público: da governabilidade à inconstitucionalidade

Abstract

This thesis is intended to analyze the interaction between DRU and the government budget, assuming the former is being used as a governance instrument. Based on a monthly analysis of the tax receipts, the conclusion is the constitutionality of the disassociation between the orçamentary system, the tax system and Fiscal Federalism. With the publication of the 1988 Constitution, an extensive number of fundamental rights were materialized in the legal system. Seeking to make viable its concreteness, the original constituent linked a considerable amount of the public revenues for its state policies, making the government budget rigid and with little allocative freedom for the governability of the Federal Executive. As a result, in 1994 the Emergency Social Fund (FSE) was established, decoupling 20% of the tax revenues for the sanitation of public accounts. In 1997, the FSE was transmuted into DRU – Desvinculação de Receitas da União. In almost three decades, the DRU has been the object of other constitutional changes, and its validity has been extended until 2023. Hence, a temporary measure has become a perennial instrument of governance. In that direction, this thesis contribution is two-fold: to understand how the regulatory and tax regulations are being redirected to improve allocative freedom; and, based on the collected regulatory data, to analyze the inferences of the DRU in the regulatory tax and non-Fiscal Federalism system. Using the theory of Political Cycles, it investigates the implications of the monthly uncoupled budget on budgetary planning and on the legal nature of taxable goods. The methodology used indirect investigation, bibliographic, and documentary research, based on exploratory, descriptive, and explanatory approaches. Thus, a qualitative analysis interpreted eight amendments of the DRU, along with the database containing budgetary information between January 1995 and December 2018, divided into seven political cycles, equivalent to each of the presidential mandates in the given period. In the end, this research indicates the use of DRU as a mechanism to bypass the budgetary legislative process. Additionally, the repercussion on the tributary species symbolizes, in practice, the creation of a sui generis tribute. The impact of the DRU on Fiscal Federalism demonstrates a significant amount of uncoupled revenues for the use of the Executive of the Union, representing an evasion of constitutionally anticipated revisions for the State and Municipalities, incurring in no compromise of the financial autonomy of the entities and, consequently, of the very principle of Federal state. Contributing against the essential nucleus of a stony clause – the Federative Principle – there is no doubt as to the unconstitutionality of the DRU.