Selective Tax Competence

the Text and its Contexts

Abstract

This paper examines the scope of the tax competence created by Constitutional Amendment No. 132/2023 when including item VIII in article 153, establishing the competence for the Union to institute taxes on the production, extraction, marketing or import of goods and services that are harmful to health or the environment, under the terms of a complementary law. The paper argues that this competence cannot be understood as relating to a simple fiscal tax, since, in this case, the criterion for distinguishing between taxpayers – harmfulness to the environment – would violate the principles of ability to pay and tax equality, and the constitutional amendment would be prevented by the protection of permanent clauses. This interpretation would also be incompatible with the new norm of non-regressivity and with the objectives of the tax reform. It is therefore argued that the competence provided in article 153, VIII, in fact, is aimed at the institution of a selective tax with non-fiscal purposes, which would be levied only on a few goods and services that are proven to be especially harmful to health and the environment. Finally, the article suggests five criteria to be followed when exercising the competence to create the Selective Tax, which simultaneously function as criteria for the validity of infra-constitutional legislation.