The Brazilian Institute of Competition Ethics (ETCO) launches the book Tribute to the Market, Competition Imbalance and the Constitution, Um Debate, on December 15, at 19:30 pm, at the Museum of Modern Art of São Paulo (MAM), in Ibirapuera Park - Gate 3.
Source: Last Instance Portal, 15/12/2010
By Hamilton Dias de Souza and André Franco Montoro Filho
Any tax interferes with the market. The tax burden impacts costs and can significantly change economic results. For this reason, the tax burden of agents competing in the market should, in principle, be uniform. If some are more costly than others, there will be artificial competitive advantage, since it does not result from greater efficiency. The precept of isonomy will then be wounded and, at the same time, the principle of free competition, damaging the exercise of free initiative, which is the foundation of the economic order.
It is the responsibility of the Public Power to take the necessary measures so that the tax is neutral in relation to the functioning of the market. This is what is called the “tax neutrality principle” which has two aspects: the negative and the positive. The negative aspect prevents the tax rule from being formulated in a way that privileges competitors (inequality in the law). The positive imposes the adoption of corrective measures aimed at making the tax burden legally established (inequality in the application of the law) effective.
Article 146-A of the Federal Constitution is a rule designed to legitimize the production of tax rules aimed at achieving the positive aspect of tax neutrality. He says that “a complementary law may establish special criteria for taxation, with the objective of preventing imbalances in competition, without prejudice to the Union's competence, by law, to establish norms with the same objective”.
This provision provides that a complementary law may establish parameters to be observed by the Union, States and Municipalities, for the creation of differentiated tax liability regimes in order to avoid or resolve competitive imbalances caused by the actions of individuals who use the tax to obtain competitive advantages. spurious. Competitive problems arising from non-tax causes or from government acts are outside the scope of the standard.
The special criteria are designed to make the correct payment of the tax feasible, when the general regime proves to be insufficient. Through them, some taxpayers are taxed differently from the others, however, with the objective of leveling the tax burden (tax function) that would otherwise be unequal, thus preventing possible competitive imbalance (extra-fiscal function). For example: if the normal IPI taxation regime, due to the value of the goods, presents application failures that compromise the regular functioning of the market, a special system of collection by fixed rates, which take into account, in its graduation, may be adopted. , the prices normally charged. In this sense, there is no breach of isonomy, but strict observance of the precept contained therein.
It must be made clear, however, that being instruments for the realization of tax justice, the special taxation criteria cannot be used in order to increase the tax burden.
Special taxation criteria can interfere with the elements of the main obligation (material criteria), or establish new ancillary obligations (formal criteria). The material criteria include: single-phase taxation, anticipation of the taxable event, fixed or specific rates, guidelines for minimum amounts. There are types of formal criteria: special inspection regimes, weight, volume or flow meters, proof of fiscal regularity, conditioning of non-cumulative tax credits to the payment of the tax in the previous transaction, special payment regime.
The elaboration of a complementary law that regulates article 146-A of the Federal Constitution is of extraordinary importance for the preservation of a healthy business environment in our country. The complementary law will establish general rules defining, essentially, the special taxation criteria that can be adopted, the competitive imbalances that justify them and the conditions and limits to be observed in your institution. As a result, tax administrations will have uniform parameters to produce norms that tend to neutralize competitive advantages based on tax violations. Taxpayers, in turn, will be protected by the limitations to be established in order to avoid possible abuses, even if under the pretext of defending free competition.
Today, 15/12, starting at 19:30 pm, ETCO launches, at MAM, the book “Tribute to the Market, Competitive Imbalance and the Constitution, Um Debate”, a work that reports the points discussed in the Seminar “Competitive Tax Imbalance and the Constitution Brasileira ”conducted by ETCO in May to discuss Article 146-A of the Constitution.
Oscar Pilagallo translates into journalistic language all the richness of the debate held at the Seminar, which was attended by:
* André Franco Montoro Filho, chief executive of ETCO;
* Everardo Maciel, former secretary of Receita Federal and ETCO advisor;
* Hamilton Dias de Souza, specialist in Tax Law;
* Humberto Ávila, specialist in Tax Law;
* Luís Eduardo Schoueri, professor of Tax Law at the Faculty of Law of the University of São Paulo;
* Luiz Fux, Minister of the Superior Court of Justice (STJ);
* Marcílio Marques Moreira, former Minister of Finance and president of the ETCO Consultative Council;
* Mariana Tavares de Araújo, Secretary of Economic Law;
* Otacílio Cartaxo, secretary of Federal Revenue;
* Rafael Favetti, executive secretary of the Ministry of Justice;
* Tércio Sampaio Ferraz Júnior, professor at the Faculty of Law of the University of São Paulo.
Book release “Tribute to the Market, Competitive Imbalance and the Constitution, A Debate”
Author: Oscar Pilagallo
Date: 15/12/10, Wednesday
Place: São Paulo Museum of Modern Art (MAM)
Address: Ibirapuera Park, gate 3, no number, São Paulo, SP
Source: Portal Fator Brasil - Rio de Janeiro / RJ - 15/12/2010
São Paulo - The Brazilian Institute of Competitive Ethics (ETCO) launches the book “Tribute to the Market, Competitive Imbalance and the Constitution, Um Debate”, on December 15, at 19:30 pm, at the Museum of Modern Art of São Paulo (MAM) , at Ibirapuera Park - Portão 3. With this new work, ETCO places at the center of the discussion one of the most important themes for the economic development of a country: combating competition imbalances and ensuring an ethical and healthy.
With a final text by journalist Oscar Pilagallo, the book is the result of the Seminar on Competition Tax Imbalance and the Brazilian Constitution, which ETCO and the Federal Magistrates School of the First Region provided in Brasília in May this year, with the aim of discussing the article 146-A, which is part of constitutional amendment 42 and provides for special taxation criteria to prevent imbalances in competition between companies. The event was attended by authorities and experts on the subject, such as: André Franco Montoro Filho, chief executive of ETCO | Everardo Maciel, former Federal Revenue Secretary and ETCO advisor | Hamilton Dias de Souza, specialist in Tax Law | Humberto Ávila, specialist in Tax Law | Luís Eduardo Schoueri, Professor of Tax Law at the Faculty of Law of the University of São Paulo | Luiz Fux, Minister of the Superior Court of Justice (STJ) | Marcílio Marques Moreira, former Minister of Finance and president of the ETCO Advisory Council | Mariana Tavares de Araújo, secretary of Economic Law | Otacílio Cartaxo, Federal Revenue Secretary | Rafael Favetti, executive secretary of the Ministry of Justice | Tércio Sampaio Ferraz Júnior, professor at the Faculty of Law of the University of São Paulo.
For André Franco Montoro Filho, the presence of the most important thinkers on the topic resulted in a deep immersion in the intricacies of the competitive imbalances caused by tax factors. “This topic has never been debated with such depth and knowledge,” reports Montoro Filho, to whom “the publication of Tribute to the Market is one of the most important contributions to combat these imbalances that are growing at the same speed as they are increasing in our country. avoidance, tax evasion and tax evasion ”.
The Author - Journalist Oscar Pilagallo is the author of “The History of Brazil in the 20th Century”, “Brazil in Sobressalto” and “A Aventura do Dinheiro”. He participated in the collective work “Música Popular Brasileira Hoje”. He is a contributor to Folha de S.Paulo, where he was a special reporter and editor of the “Dinheiro” and “Sinapse” sections. In 2005, he created EntreLivros magazine, which he edited for two years. Born in São Paulo, he lived in London between 1986 and 1991, when he worked at the BBC Brazilian Service. In 1993, he received the Esso Specialized Reporting Award.
ETCO- Founded in 2003, the Brazilian Institute of Ethics in Competition is a civil society organization of public interest -OSCIP- with the objective of promoting competitive ethics to improve the business environment and stimulate economic growth. To this end, it develops actions to combat competitive imbalances caused by tax evasion, informality, forgery and other misconduct. It also seeks to raise society's awareness of the social harms of unethical practices and their negative effects on the country's growth. The ETCO comprises: six sectoral chambers bringing together companies in the technology, medicine, fuel, tobacco, beer and soft drink segments.
[Launch of the book “Tributo ao Mercado”, by ETCO | Author: Oscar Pilagallo, on December 15 (Wednesday), at 19 pm, at the Museum of Modern Art of São Paulo (MAM), Ibirapuera Park, gate 3, no number, São Paulo, SP.