Source: The State of São Paulo, 01/11/2010
Author: Everardo Maciel *
In a previous article, I commented on the inclusion of the tax on large fortunes in the bizarre III National Human Rights Plan, conveniently forgotten during the election campaign. I tried to emphasize the extravagance of inclusion and the insubstance of the tax.
I recently discovered something that amplifies the eccentricity of that proposal. “Law 002” intended to tax any equity whose value was equal to or greater than the equivalent of 10 million US dollars at a rate of 1%. The penalty for non-compliance with the obligation implied kidnapping the holders of the property. The "law" was enacted by Raúl Reyes, a FARC activist killed in 2008 in Ecuador. If the tax on great fortunes was previously supposed to be an oddity among French socialists, we come to know that it is also the preferred tribute for the Colombian narco-guerrilla.
In fact, the connection between human rights and taxation is expressed in sparse constitutional and infraconstitutional rules, having, moreover, been the object of doctrinal incursions, such as the remarkable work of Ricardo Lobo Torres (“Treaty on Constitutional Financial and Tax Law), and research works, such as the one carried out by the Instituto Brasiliense de Direito Público in collaboration with FGV.
The theme can be explored from different perspectives, such as the use of taxation to make human rights effective, the limitations on the power to tax, the observance of the principle of contributory capacity, the prevention of unfounded discrimination and tax privileges or, simpler and perhaps more objective, the enforcement of taxpayers' rights.
Taxpayers' rights are only incidentally included in tax reform proposals, because the initiative of the proposals is almost always the Executive Branch, which takes care to focus them mainly on matters of interest to the State. All of this is easily explained in a context of a marked deficit of citizenship.
Many countries have issued taxpayer rights codes. I understand that, in Brazil, it would be preferable to include it as a chapter of the National Tax Code, to make it clear that general tax rules must be accompanied by those rights. Without intending to draw the theme, there are some questions related to taxpayers' rights, which deserve reflection.
Normative instability is a factor that preserves transparency and takes advantage of the practice of tax surprises. Take, for example, the institution or increase of taxes. Today, the nineties prevail, sometimes combined with annuality.
This rule, apart from being continuously violated by the frequent revisions of the ICMS agenda, generates a clear incongruity. Public budgets, which must be based on relative certainty with regard to revenue estimates, are sent to legislative houses at the end of August or September, depending on the federative entity. The taxes, however, can be changed, depending on the case, until the end of the year. The solution to this inconsistency is to condition the institution or increase taxes to its approval by June of the previous year, except for those of a regulatory nature, under the terms of the Constitution.
Ortega y Gasset said that "clarity is the courtesy of the legislator". This could have been the reason that inspired the institution of the requirement, provided for in art. 212 of the National Tax Code, to consolidate, annually, until January 31, the legislation of each specific tax. This duty is solemnly unknown to the Public Power, which, however, complains that the taxpayer is unable to permanently monitor the legislation. The rule needs to leave the programmatic field for the tax, by establishing sanctions against the holder of the Executive Power of the taxing entity that disobeys the requirement.
Still on the path of transparency, there is a proposal to centralize consultation solutions, in effect erga omnes, through a parity body, made up of representatives of the tax authorities and taxpayers.
The imputation of fiscal responsibility has often been abusive, because it was made without prior notification, to the complete disregard of due process, out of mere suspicion and at any time after the launch. This truculence extends to the labor field. It is not uncommon for online attorneys to attach financial assets to lawyers, simply because, at some point, they have included a power of attorney to take care of clients' interests, not to mention the alleged joint and several liability of people who did not compete for tax violations. The matter deserves severe discipline to prevent the terror empire that is intended to be installed.
Finally, without less importance, I understand that the time has come to eliminate the procedural privileges conferred on the Public Treasury, in terms of double counting time for manifestation in processes and the unusual review necessary in sentences that favor the taxpayer.
* Everardo Maciel, tax consultant, was secretary of the Federal Revenue (1995-2002) / article published in O Estado de S. Paulo