Lecture by Roberto Quiroga on Legal Security and Interpretation of Tax Rules



The lawyer and professor Roberto Quiroga, from the FGV Law School of São Paulo, spoke about factors of legal uncertainty related to the interpretation of the tax rule. To dimension the problem, he cited the size of the amounts under discussion in the various spheres of administrative and judicial collection.

"Today, we have a tax litigation that has already reached R $ 3,3 trillion", he said. “We are talking about half of a Brazilian GDP. So, two ways: either the taxpayer is misinterpreting the legal norm or the State is exaggerating the application of the legal norm. ”

He pointed out the delay of the judicial system to give the final say in the interpretation of fundamental issues that affect many businesses - for example, the discussion about the deduction of ICMS from the PIS and Cofins calculation base - as an important part of the problem. He recalled that the relationship of forces between the State, which has the prerogative of self-protection, and the taxpayers is uneven. He deplored the institute for modulating decisions, which would place the state's fiscal problems above the law. And he defended the so-called “guarantor” of the Brazilian Constitution.

"Of course, we have to look at the state side," he said. “But the legal security we are talking about is the security that the constitutional text gives to the taxpayer. Against agency, against state authority with its right to self-protection. ”

Quiroga criticized the lack of conceptual basis for decisions taken by the different judging bodies, including the CARF and the Supreme Federal Court, and mentioned topics where great confusion in the jurisprudence persists. He cited, as an example, the taxation of profits abroad, appreciated by the plenary of the STF. “He decided nothing. He just confused everyone, ”he said. “Ten different votes. I don't know how to tell my client today how to tax profits abroad. ”

After the lecture, he answered a question from the seminar coordinator, tax attorney Everardo Maciel, about the taxpayer consultation services offered by the tax authorities. He criticized the lack of preparation of the professionals who carry out this work and also the risk of acting partially due to the fact that they work within the collection agency. “If I have a consultant who is already predetermined to say no, the Institute is worthless. Maybe I had to have a competition for consultants ”, he suggested as a means of making consultations more effective and impartial.

Following is the transcript of the lecture: