A inconstitucionalidade de determinadas isenções tributárias do município de Fortaleza

Abstract

Tax exemptions are an important tool for the implementation of public policies. Non-fiscal purpose measures should and must be used to incentivize certain behaviours and to promote constitutional values, which favor society in general. Nevertheless, since in many cases they are not taken under the same scrutiny as the norms which implement taxes, they may end up being used for the benefit of special interest groups in the already regressive Brazilian tax system. This is the background of this study. This paper analyzes three tax exemptions instituted by the city of Fortaleza: property tax and real state transfer tax for city employees and service tax for artists who reside in the city for more than two years. The goal of this analysis was to verify if the norms which instituted the exemptions are in accordance with the Constitution. To that end, it was utilized the criteria developed by Celso Antônio Bandeira de Mello, who established five tests so that a legal norm can be considered isonomic, they are: I – the norm must not singularize an individual; II – distinguishing criterion must not reside in the facts themselves; III – there must be a logical connection between the norm and the inequality it intends to reduce ; IV – the norm must be a representation of constitutional values; and V – the norm must not be interpreted in a way to include meanings not literally expressed. After the test, it was concluded that the three of them utilize distinguishing criterion which are part of the facts themselves; that there is no logical relation between the norm and the inequality it intends to reduce in the three cases and lastly these norms do not represent the constitutional values they should be instead promoting. Therefore, they can be deemed unequal.