A relação entre o fato gerador e os princípios constitucionais: um estudo sobre a cláusula “pecunia non olet”

Abstract

This work deals with the sub-principle “pecunia non olet” and its relationship with the generating event. In this context, the importance of constitutional tax principles for the field of taxation will be highlighted, taking into account the provisions of the Federal Constitution and Law No. 5,172/1966 - National Tax Code. The problem that hovers over the topic under discussion consists of the doctrinal divergence on the possibility or not of taxing the illicit and the question whether it has legal support. The subprinciple of the “pecunia non olet” clause dates back to 69 AD, when the Roman Emperor Vespasian established it. Nowadays, questions about the legal viability of the institute, about tax justice and about the practical consequences of illicit taxation are pertinent to the study of the subject of Tax Law. Faced with such questions, the monographic production seeks to analyze the feasibility of applying the sub-principle, in accordance with the constitutional tax principles and the triggering event, since every tax obligation necessarily depends on a concrete situation occurring in the real world, that is, on a fact that generates it. To this end, the methodology used consists of applied doctrinal research, with a deductive, qualitative and quantitative approach, with a descriptive objective, and the purpose of bibliographical, documentary and jurisprudential research. It follows that every act produces a fact. As stipulated in art. 188 of the CTN, the legal definition of the triggering event is interpreted without considering: I) the legal validity of the acts actually carried out by taxpayers, responsible parties, or third parties, as well as the nature of their object or effects; II)the effects of the facts that actually occurred. In summary, the “pecunia non olet” clause highlights precisely the fact that the taxable event is determined by law and should not be influenced by moral judgments about the origin of the money involved in the taxable transaction, since Tax Law , also being a branch of Public Law, has as its basic principles the supremacy and unavailability of the public interest.