Competência para legislar sobre processo tributário administrativo na constituição brasileira de 1988.

Abstract

The aim of the present research is to propose an interpretation, from the perspective of the jurisprudence in a narrow sense, for legislative jurisdiction regarding the administrative tax procedure. In contrast to other subjects pertaining to Public Administration, such as public bids and contracts or civil requisitions, the 1988 Constitution has not expressly mentioned the competent jurisdiction to regulate such process in which the tax authority, as the administrative authority, must follow in the application of the law as a result, we currently face a dispersion and profusion of rules for proceeding, due to, in theory, the several federative entities. The hypothesis raised and subjected to the corroboration tests based on Brazilian juridical experience acknowledges this jurisdiction falls within the validity scope of article 24, item I, combined with art. 146, III, all of them from the Constitution. That means, concurrent jurisdiction on tax law and this will be for the Federal Government to edit general rules and for the other constituent entities of the federation to include or complement the previous general rules. This, of course, under the light the Brazilian federal state features, which cannot be forgotten during the dogmatic construction. This interpretive proposal is confronted not only with the frameworks that consider the tax administration process as a matter of the administrative law, in which the jurisdiction would be implicit and common to all political entities, but also with those who defend the inclusion of the issue in the context of procedural law and therefore, with reserved power of the Federal Government (article 22) and with the Member States and the Federal District having only concurrent jurisdiction to regulate procedural matter (article 24, XI). After systematizing the constitutional statements that allow us to imply the rule of law for jurisdiction, the research turned to analyze the meaning and scope of the administrative tax procedure itself, especially because in Legal Dogmatic – which deals with the matter – links it to the concept of litigation, plus it is subjected to critical review even in the realm of civil procedure where it originated. Proposing a normative interpretation about the competent jurisdiction to provide for the administrative tax procedure, without presenting at least an idea of what it is, and what it covers would mean to be halfway to answer the research question. The method used was the legal dogmatic, which has the task to conceive interpretative models or assertions about the meaning of the existing law, aimed at the application. The data were obtained mainly from the bibliographical revision, with emphasis on the papers produced in Brazil, during the term of the 1988 Constitution.