Tax neutrality depends on the publication of a Complementary Law for almost a decade


Since December 2003, when Constitutional Amendment nº 42 was published, complementing article 146-A of the Constitution, the Complementary Law envisaged therein is expected to be published, which will allow special tax criteria necessary to combat the competitive imbalance caused by tax violations . The great challenge for 2012 is to ensure that this law is finally enacted and a healthier competitive environment is established in the country.

Historically, in Brazil, among the many factors that can cause unfair competition between companies in the same sector, is the use of tax subterfuge to reduce the cost of products and, thus, obtain competitive advantages in the market. In 2003, the country took a major step towards eliminating this evil, when, on December 19, art. 146-A, as a result of Constitutional Amendment No. 42. Nine years have passed and, since then, law-abiding companies have waited for the publication of the Complementary Law referred to in the article, while fighting in their daily lives to face disloyalty in competition.

Art. 146-A of the Federal Constitution says that "a complementary law may establish special taxation criteria, with the objective of preventing imbalances in competition, without prejudice to the Union's competence, by law, to establish norms with the same objective". In short, it is an authorization to establish special taxation criteria, which embodies the principle of tax neutrality, that is, that taxes should not cause effects contrary to free competition.

The provision foresees that the Complementary Law may establish parameters, to be observed by the Union, States and municipalities, for the creation of differentiated regimes of tax obligations in order to avoid or resolve competitive imbalances caused by the actions of individuals who use the tax to obtain spurious competitive advantages. "In summary, it allows new differentiated systems to be adopted by the Union, the States, the municipalities and the Federal District, when necessary to ensure that the tax burden is uniform for agents who compete in the market", explains Hamilton Dias de Souza, a tax lawyer.

Due to the importance of the topic, ETCO has promoted debates, over the years, which culminated in the May 2010 seminar on Tax Competition Imbalance and the Brazilian Constitution, in partnership with the Federal Magistrates School of the First Region. The conclusions of the event were synthesized and, based on them, the Draft Supplementary Law designed to regulate art. 146-A of the Constitution.

The chief executive of ETCO, Roberto Abdenur, points out that “it is fundamental and urgent to issue a complementary law that regulates art. 146-A so that we can create and preserve a healthy and fair business environment in our country ”. For him, "it is unacceptable that, almost a decade after the publication of the article, we are still living with such transgressions".