Three questions for Hamilton Dias de Souza


The tax attorney and member of the ETCO Advisory Council Hamilton Dias de Souza gives details about the regulation of article 146-A, which entered into the Federal Constitution in 2003 to allow special taxation criteria to avoid tax competitive imbalances.

How can the regulation of article 146-A establish special tax criteria?

It is not the complementary law that will define the special taxation systems. It will only create the framework within which the Union, States and municipalities will be able to discipline these issues. Especially because, it is impossible to address this issue in the more than 5.500 municipalities that we have in the country. The work must be at the state or municipal level, where each one will create or deal with the matter according to their own legislation. It is worth remembering that article 146-A is not a standard that allows the collection of taxes. It is also not aimed at the interests of the tax authorities, but rather at protecting competition and the market.

Complementary law aims to prevent competitive imbalances from which source?

The complementary law aims to prevent imbalances caused by the taxpayer and not those caused by the tax authorities or by the tax rule. If there is a tax rule that, in itself, causes a competitive tax imbalance, it will be unconstitutional. It is, therefore, a matter of curbing deviations practiced by those taxpayers who, in one way or another, systematically fail to pay and hinder the market as a whole. They do not hinder the competitor, but the competition. Therefore, it is not a problem between individuals, but what is harmful to the market and the economy in general.

How to define criteria to establish the limit of tax incentives?

The limit, in my opinion, is that of free competition. If, through a tax incentive, a State reaches the point of affecting the market, it will inevitably be able to violate the principle of free competition, which is enshrined in article 170 of the Constitution. I am not against the incentive, but I believe that the parameters must be established by general clauses and this has to be verified in specific cases. If, at present, Confaz had a system capable of ascertaining the rationale of incentives, the definition could be more concrete and adequate.