Fundamentos para o controle da extrafiscalidade tributária sob o parâmetro do princípio da eficiência administrativa

Abstract

The State's action in the economy occurs in various ways, being the intervention on and in the economic domain one of these actions and, in this case, an activity derived directly from the constitutional assignment to perform the regulation of the economic order, meeting, in turn, its own objectives defined by law. In this context we find the extrafiscal taxation, a legal instrument designed to obtain, by the State, behaviors and conduct of economic agents according to social, economic or financial objectives set forth in law or in public policies, through the use of taxation and tax rules to achieve such purposes, established by the Constitution or infra-constitutional rules. Thus, the work developed intends to determine whether the formulation of extra-fiscal taxes or tax rules with this coating has a parameter of legal-constitutional control of its results, considering the hypothesis that the principle of administrative efficiency serves as such a parameter, because the extrafiscal tax activity is, ultimately, administrative activity that is subject to the corresponding legal regime and that principle affects the measurement of results. Thus, the aim is to proceed with the investigation presented by exposing both the concepts and legal delimitations of extrafiscal taxation and the principle of efficiency in order to finally define the ways and assumptions by which efficiency can be used to control extrafiscal taxation. The hypothetical-deductive method will be adopted to establish basic and derived propositions to the relevant concepts of the work, namely, extrafiscality, the principle of efficiency and control of administrative acts, and to subsidize the solutions to the problem, supported by bibliographic and documentary research, through the analysis of constitutional and infra-constitutional rules, as well as assumptions of administrative, tax and constitutional law to investigate the theme. With this, the result was the possibility of controlling the extrafiscal taxation by the principle of efficiency, once it is derived from the regulatory action of the State and constitutes an administrative activity subject to the incidence of such principle, whose effectiveness in the administrative sphere is broad and relevant, provided that it does not imply in noncompliance with the law in situations bound by it, and with reservations and limits to judicial control using only administrative efficiency as a parameter.