Lecture by Humberto Ávila on Legal Security, Taxation and Development



One of the greatest Brazilian scholars on the subject, with a doctorate in Germany and postdoctoral internships in that country and also at Harvard, in the United States, the professor of tax law Humberto Ávila, from USP, made a summary of the theses he presents in his lecture. in depth in his book Theory of Legal Security, of 744 pages, which the seminar coordinator, Everardo Maciel, defined as a “true treatise on the topic”.

He addressed three aspects that he considers essential for legal tax security. "There is security only when the right is understandable, stable and predictable," he said, attributing these factors to time.

Understanding concerns the present: "The right to be followed must be at least well understood".

Stability, with the passage from the past to the present. “The taxpayer who trusts the law yesterday cannot be betrayed by the law today. For this reason, the law protects the acquired right, the perfect legal act, the res judicata, the protection of trust, the consolidated situations, the preclusions, prescriptions, decadences ”, he exemplified.

Predictability refers to the transition from the present to the future. "The taxpayer, when he acts, needs at least to predict what are the consequences that will be applied in the future to the acts he practices in the present", he said.

Then, he pointed out the main problems that exist today in Brazil in these three dimensions. Humberto Ávila criticized the practice, common in the country, of not looking for the precise meaning of words and thus allowing for very elastic possibilities of interpretation. "There is no country in the world that is developed and in which words have no meaning," he warned.

Citing a recent decision by the United States Supreme Court, which directed the courts of that country to declare null the laws badly formulated by Congress, instead of trying to correct them, argued that a large part of the problems of legal insecurity seen in Brazil today are due to lack of determination by the Judiciary to demand more quality in Legislative decisions.

“Do you know why in Brazil the legislation is bad? Because the Federal Supreme Court does not declare the laws unconstitutional because they are bad, ”he said. “We have to recover the didactic role of the courts and start declaring the unconstitutionality of rules that are contradictory, that are too vague, too ambiguous. Because the taxpayer has to guide himself or his behavior based on some direction. ”

Humberto Ávila condemned the practice of federal entities to institute or increase taxes through regulations, and not laws, as required by the Constitution. He also criticized changes in orientation in jurisprudence that produce retroactive effects, violating taxpayers' rights.

At the end of the lecture, in conversation with Everardo Maciel, he drew attention to the risk that the country is taking with the institution of modulating the effects of judicial decisions to protect the state's finances. This legal figure, as is known, is used in cases in which the State suffers a judicial defeat that forces it to return large sums to taxpayers, usually in cases that take many years or even decades to be judged. Modulation seeks to make condemnation more flexible and reduce these values ​​to minimize the effects on public coffers.

According to Humberto Ávila, this resource encourages the State to disregard the Constitution, which ends up benefiting financially from unconstitutional laws. “The right has many effects, one of which is to define what is right and what is wrong. Now, if the right is equal to the wrong, I wonder what kind of citizenship there will be in Brazil and what kind of exercise of public power there will be in Brazil ”, he pondered.

Following is the transcript of the lecture: