A neutralidade tributária após a emenda constitucional 132/2023: uma análise sobre sua efetividade e limites normativos

Abstract

Tax neutrality can be defined as the feature of a fiscal system that aims not to interfere with the agents’ economic decisions, avoiding market distortions and promoting equal treatment among sectors and consumers. However, although historically conceived as a doctrinal ideal in Brazilian law, neutrality was only expressly provided for following the enactment of Constitutional Amendment No. 132/2023. In this context, the present study will address issues related to the effectiveness of tax neutrality and the limitations imposed by the exceptions introduced through complementary legislation after the tax reform. This will be done through the analysis of jurisprudential and doctrinal understandings on the subject, as well as through comparative studies with other fiscal systems around the world. Accordingly, the central issue of this study revolves around the following question: is the constitutionalization of tax neutrality as a principle by Constitutional Amendment No. 132/2023 sufficient to ensure its practical application within the Brazilian tax system, or do the exceptions provided for in infra-constitutional norms undermine its implementation? The study was chosen due to the current relevance of the topic and its importance for the legal system, since it directly affects fiscal justice, legal certainty, and free competition. Given the challenges identified, the objective is to address questions related to the normative effectiveness and the practical limitations surrounding the actual enforcement of this principle in Brazilian law. As for methodological procedures, the study adopts an applied research approach, with a qualitative methodology, a deductive method, and a descriptive-explanatory objective. It concludes that, although neutrality is now expressly provided for in the Constitution and is established as a principle following the tax reform, further research is still needed to resolve the tension between the theoretical ideal of neutrality and the political choices that shape the Brazilian tax reality.