The (non) applicability of the tax law anteriority principle to the repeal of tax exemption

Abstract

This article aims to discuss the applicability or not of the principle of the tax law anteriority to the repeal of tax benefit. The principle of the tax law anteriority, as a limitation to tax powing, appears to be important in the national tax system to ensure the right of taxpayers plan their business and activities. The tax benefits, understood as a reduction or elimination of taxes aimed at behavioral change of taxpayers, usually in order to foster economic development, cover, among them, the exemption. The exemption is always granted by the entity law that has the power to impose tribute, being allocated in the tax code as a cause of exclusion of the tax credit. In doctrine, it was formed, about its nature, theories involving its impact on the factual and legal plans. The most classic understands that exemption is the legal exemption from tax payment. This theory has guided the conception that supports the inapplicability of the tax law anteriority to the repeal of tax exemption, idea that proved to be traditional in the Supreme Court jurisprudence. Another theory holds that the exemption is intended to deny the existence of tax legal regard, reaching the tax incidence of rule-matrix. In a recent decision, the Supreme Court held a new understanding and decided to the applicability of the tax law anteriority to the repeal of tax benefit. This decision raises the debate on the adoption of a different approach by the Supreme Court, facing the issue with the adoption of the second theory formulated around the nature of the tax exemption.