Unconstitutional Tax Penalties and the Control by the Judiciary

Abstract

This article proposes one of the main tax issues discussed in contestations of taxpayers, asking about the possibility or not of reducing unconstitutional tax penalties. The problem involves a twofold question: on the one hand, taxpayers use the argument that it is impossible to reduce the penalties, by virtue of the private jurisdiction to launch and the separation of powers. On the other hand, the Public Treasury argues that the constitutionality control can be promoted in relation to the excess of the pecuniary penalty. The justification of the topic lies not only in the interesting legal discussion, but also in the impact that the definite consequence can result in each case (full exclusion or partial payment). Methodologically, the study appropriates concepts of political science and jusophilosophical about the role of the Modern and Present State and its relationship with the individual, to focus the Tax Law, especially in its punitive aspect, on the constitutional conformation of the State Sanctioning Power to the Constitutional Guarantees. It is also a matter of carrying out a bibliographical review of the current stage of discussion of the topic, in order to critically analyze the paradigmatic judicial decisions on the subject, especially of our Constitutional Court, in order to formulate a critical position on the object of study. It is then proposed (work plan) to confront the thesis about the possibility or not of reducing unconstitutional tax fines by the Judiciary.