Author: Helder Rebouças

Source: Valor Econômico - 27/08/2009

Constitutional Amendment nº 42, of 2003, among other changes, gave the Federal Senate a new competence: periodically assess the functionality of the national tax system, in its structure and components, and the performance of the tax administrations of the Union, the States and the District Federal and municipal governments. This is what determines article 52, item XV, of the Federal Constitution. As a result, in 2004, Senate Ramez Tebet's Draft Resolution no. 13 was initiated in the Senate, which adds the periodic assessment to the powers of the Economic Affairs Committee (CAE) of that house. of the tax system in Brazil. According to the proposition, it is expected to carry out at least one evaluation, during the term of a legislature, with the preparation of a final report. In addition, depositions from federal, state, district and municipal authorities may be requested, as well as information from federated entities, related to the performance of the respective tax administrations.

Without prejudice to these topics, the periodic assessment of the national tax system includes an examination of the complexity and extent of tax legislation, which ends up affecting the legal security of relations between the State and the taxpayer. According to the Brazilian Institute of Tax Research of São Paulo, between October 1988 and October 2007, almost 236 thousand tax rules were published, at the federal, state and municipal levels. Aside from the quantitative aspect, it is worth mentioning that tax rules are generally difficult for the taxpayer to understand, generating a real contingent of “tax illiterates”, making it difficult to exercise citizenship.

In addition, this tax body ends up raising so-called compliance costs, which involve expenses such as hiring offices and specialized consultants, searching for legislation and tax databases, obtaining certificates and declarations from the state bureaucracy. Estimates indicate that these costs are in the order of R $ 11,4 billion annually. This is almost equivalent to the resources allocated to the Bolsa Família Program, which in 2008 invested R $ 11,8 billion. Nothing prevents, therefore, that, within the scope of the legislative process of the National Congress, the consolidation of federal tax legislation is promoted, which would already represent a major institutional advance. It is good to remember that, according to article 212 of the National Tax Code, it is required that the federal, state and municipal executive powers consolidate, in a single text, the legislation related to each of the taxes, repeating this measure until the January 31 of each year.

The Senate may also, in the exercise of its evaluative competence and, reinforcing the role of external control of the National Congress, assess the regional effects of the federal government's policy of waiving tax revenues. This is a relevant and constitutional issue, to the point that our political charter requires that the annual budget law is always accompanied by a regionalized statement of the effect, on income and expenses, exemptions, amnesties, remissions, subsidies and benefits from financial, tax and credit nature. In going through this examination, the Senate would obtain a regionalized radiography of the policy of tax incentives in the different spheres of government, allowing to evaluate the coordination of these policies and to measure their global results.

It is the exclusive competence of the National Congress, according to article 49, V, of the Federal Constitution, to stop the normative acts of the Executive Power that go beyond the regulatory power. Thus, in the periodic assessment of the national tax system, by the Senate, it would be possible to specifically survey possible infralegal rules that are innovating tax law and, therefore, violating the principle of legal reserve and due legislative process. The systematic and regular discussion on the legislative practice of tax administration, within the scope of the Constitution and Justice Commission of the house, would create an additional forum for debate on issues relating to legal certainty in the relationship between the tax administration and taxpayers.

In December 2008, we completed the work of the temporary tax reform subcommittee, composed of Senators Tasso Jereissati, Francisco Dornelles and Neuto De Conto, who made several suggestions for the construction of a new national tax system. The experience of this parliamentary group is, without a doubt, a basis for the effective regulation of the constitutional competence attributed to the Senate to periodically evaluate our tax system. The exercise of this attribution, in addition to qualifying the parliamentary debate, reinforces one of the main functions of the house, which is to ensure the balance of the federation, which depends, above all, on the functionality of the national tax system.

Helder Rebouças is a budget consultant, director of technical coordination for the Senate presidency and professor of financial law in Brasília

This article reflects the views of the author, and not of Valor Econômico newspaper. The newspaper is not responsible and cannot be held responsible for the above information or for losses of any kind due to the use of this information.