O Controle de Proporcionalidade das Regras de “Substituição Tributária por Fato Gerador Presumido”

Abstract

Since the decision of the Federal Supreme Court on the judging the Direct Action ADI 1.851-4/AL, the political entities, specially state-members, started to make plain and general use of the regime exceptionally authorized by the article 150, paragraph 7º, of the Constitution of 1988, clause inserted in the constitutional text by the third Emend (1993). It is a tax regime called “forward tax substitution” on “constructed” taxable events, that makes an exception to on the ability to pay principle based on the taxation practicability. The object of this essay is the limits of the use of this regime. The ability to pay is the object of constitutional norms, and that one with the structure of a principle tends to be restricted by rules which aim the practicability of the tax system, like the taxation of presumed facts. Therefore, the proportionality is the instrument proposed for the application of the norms in case and controlling of these restrictions to the constitutional right to the taxation according the ability to pay.