Estado fiscal e legalidade: uma análise da coerência decisória na aplicação de matéria tributária pelo STF e STJ

Abstract

The present work seeks to analyze selected precedents from the Federal Supreme Court and the Superior Court of Justice about the application of tax legality in these courts, as this is the primary instrument for promoting legal certainty. The present study was based on bibliographic research, especially the bibliography of tax and constitutional law, in addition to using the inductive method, considering that it started from the concrete cases analyzed so that it was possible to extract the conclusion of the work. The analysis is justified because the Tax Law is a structuring element of the democratic State and the federative republic, considering that it is through it that the resources for the maintenance of the State are obtained and the achievement of various constitutional values is made operational. Although Legality has different meanings and dimensions, sometimes it can be seen as a rule, sometimes it can be seen as a principle, the evolution of society and cultural plurality, led to the insufficiency of the definition of closed types, removing the method of subsumption as the appropriate one for solve all legal problems, which led to the conceptual opening of tax legality, which may represent an apparent decision-making inconsistency, since sometimes flexibility is allowed, sometimes the inflexible character of the principle is reaffirmed. Decision-making inconsistency generates a state of legal uncertainty, since certain sectors, due to their greater dynamics and demand a more direct action from the executive branch (either because they have more technical conditions to assist, or because they are responsible for inspecting, regulating), will experience the application of legality in a different way, which represents a breach of isonomy.