The Possibility of Tax Incentives Control by the Judiciary Power

Abstract

This text intends to study the possibility of control of the tax incentives by the Judiciary Power. A kind of waiver of revenues, the tax incentives have not yet received the correct attention by the tax and financial researchers. Attentive to the importance of the subject, this work is dedicated to the study of this type of indirect expenditure. The tax incentives are sorts of tax waiver, with the objective of stimulate the taxpayer behavior, reaching constitutional purposes. As all public spent, such tax renouncement is subject to the control by Legislative, Executive and Judiciary Powers. Nevertheless, the activity of public spent concession is submitted mainly to the Executive and Legislative Power, so it is necessary to investigate what is, or what should be, the role of Judiciary Power in the control of such resources. About the formal requisites, the Judiciary has a wide space of action controlling tax incentives, analyzing if the constitutional and legal requisites, to the concession of the public spent, were fulfilled. On the other hand, concerning to the merit control of this expense, the action context of the Judiciary must be restricted, recognizing great freedom of choice to the Legislative and Executive Powers, including the option for implementing public policies by tax waiver. Legislative and Executive, however, do not have unrestricted freedom. If the using of this instrument of economic domain intervention conflicts with other rules or constitutional principles, it is possible that the Judiciary, according to the principle of proportionality, verifies and controls the principles involved in the concession of tax incentives. Analyzing the proportionality, the Judiciary Power must respect the choices by the other Powers, remaining restricted to the invalidation of inadequate, excessive or flagrantly disproportional measures (stricto sensu), and clearing away the inefficient or ineffective measures.