Isenções fiscais e o princípio da legalidade: um estudo de caso sobre o programa PERSE

Abstract

This work examines, from the perspective of Tax Law and the constitutional legal regime, the regularity of the Executive Branch's actions in drafting Ordinance ME No. 7,168/2021, which aimed to regulate the provisions of Law No. 14,148/2021, which instituted the Emergency Program for the Resumption of the Events Sector (PERSE). In view of the global public health crisis caused by the Covid-19 virus, a series of measures limiting personal freedoms, based on state police powers, had to be taken in order to restrict the spread of the disease. However, as a side effect of these measures, an environment of aggravated economic crisis was created, which, due to the nature of the activities carried out, hit the events sector more intensely. In view of this, PERSE emerged as a package of emergency and temporary measures to assist the components of this specific sector, which is relevant to the national GDP. It so happens that, in the discipline of those who would be covered by the Program, the then Ministry of Economy drafted Ordinance No. 7,168/2021, which, in addition to listing the codes of the National Classification of Economic Activities (CNAE), also listed the need for the intended beneficiaries of the Program to be registered in the Registry of Tourist Service Providers (CADASTUR) at the time Law No. 14,148/2021 came into effect. However, since there was no such requirement in the PERSE Law, a broad discussion arose about the regularity of such a requirement, having initiated a large wave of judicializations related to the legality of the aforementioned Ordinance. It is, therefore, on this basis that the present work is based, which aims to promote a critical judgment about the regularity of the Executive Branch's actions in the case under analysis. To this end, the discussion concerns the nature of PERSE, as a wrapper for tax advantages and, more specifically, art. 4° of Law No. 14.148/2021, which established the “reduction to zero” of the tax rates listed in the aforementioned article, for a period of 5 (five) years. By correctly identifying the figures related to the provisions in question, we seek to better relate them to the constitutional tax order, mainly in relation to the discipline of the principle of tax legality applied to tax exemptions. Through a case law analysis, it is demonstrated that the discussion is still relevant even in the face of many new developments surrounding the Program, and that the Executive's actions in fact violated the principle of legality, making the constitutional protection guaranteed to the taxpayer and tax justice unfeasible.