Análise da norma antielisiva inserida no Código Tributário Nacional á luz dos princípios constitucionais.

Abstract

The present scientific work objective to develop a study on the relation between the principles constitutional that conduct the economic activity, the taxation and the antiable to be eliminated norm. In the first chapter, it is approached origin of the systems of intervention of the State in the society. In as the chapter, a superficial communication will be made, without pretensions of i f enveredar for the comparative jurisprudence, of the international panorama on the forms as the fiscal elimination and antiable to be eliminated norms in diverse countries are treated, ones with legal systems based in the civilian law, others in common law. The third chapter is to the principles constitutional and the theories that conduct the economic activity and the taxation, focando its aspects directed toward the institute of the fiscal elimination or the antiable to be eliminated norm. It verifies the possibility of the job of antiable to be eliminated general norm in the native right, that is, taxation for extratypical legal analogy in fact of economic effect equivalents the typical legal fact, on the basis of the doctrine of abuse of processs and principle of the tax-paying ability. Examination of the principles of the legality, the closed vagueness doctrine, the tax-paying ability, the isonomy, solidarity and the ability. The room chapter brings one brief analysis of the fiscal administrative proceeding, in accordance with the Decree n° 70,235/1972 and with Portaria of the Treasury department n° 55 of 1998. In the fifth chapter, general consideracoes on the antiable to be eliminated norm are made, taking as base the Brazilian legal system, focusing subjects as the terminology of the term, the accord in the antiable to be eliminated norm with the theories and principles constitutional and the necessity of usual law that estabeleca procedures. It concludes for the possibility o f taxation of the legal transactions practised with the purpose to dissimulate the occurrence of the generating fact of the tribute or the nature o f the constituent elements with bedding in the inserted antiable to be eliminated norm in the Internal revenue code. Possibility of restriction of the effectiveness of the rule of the vagueness doctrine for the principle of the tax-paying ability. Necessity of antiable to be eliminated specific norm to give to validity the general norm.