Multas Tributárias, Proporcionalidade e Confisco

Abstract

Considering the existence of a greater concern about substantive issues, due to the recognition of the normativity of certain constitutional principles, this paper discusses the existence of limits to be observed by the legislator in defining tax offenses and grading the correspondent penalties. As such penalties are a means to achieve constitutionally protected purposes, it is not possible to legally define a conduct as unlawful when it is not appropriate for the achievement of these purposes. Nor it will be valid when there are other means equally adept to the achievement of those objectives. Finally, the penalty, to be valid, must be proportional in the narrower sense, so the prestige constitutionally protected values that justify its application does not imply excessive encumbrance of other values equally protected by the constitution. Examples of penalties that do not meet such requirements are the one provided in article 74, §§ 15 and 17 of Art. 74 of Law 9.430/1996, the penalties repelled by Precedents 70, 323 and 574 of the Brazilian Supreme Court, and fines imposed in case of violation of formal duties, in situations in which the tax is not due, or whose tax is due and collected regularly, but nevertheless the penalty is calculated in proportion to the value of the operation.