A natureza jurídica da dispensa e da restituição do pagamento de impostos: análise do caso do IPVA - Lei nº 13.296/2008, SP

Abstract

This study aims to determine the legal nature of the figures tax exemption and tax refund, which are among the exoneration institutes used by the State in its three levels federal, state and municipal to relieve certain taxpayers or certain situations from taxes to which otherwise they would be subject. It is noted, however, that these institutes are not provided for in the Constitution, nor in the Tax Code. Hence, our motivation to investigate the tax matters and at the end of this study determine the legal nature of these two tax relief institutes, as well as examine the possibility of such institutes having the same status of other existing exoneration institutes. This study will start by examining the national tax system, turning into the analysis of legal norms, its structures and logical construction, also using the Rule Matrix of Taxation, which is an essential tool for studying the mechanism of legal rules. Further, the ultimate kind of legal rules, constitutional principles, will be unveiled, examining those considered most relevant in relation to the exoneration tax phenomena and that therefore have a strong influence on the granting of tax benefits. We will undertake an analysis of the key tax relief figures, from its features and operating mechanisms, to then compare the institutes of tax exemption and tax refund with each of them in order to determine the legal nature of these last two. We will undertake a careful analysis of the law that deals with the Tax on the Ownership of Motor Vehicles (IPVA) of São Paulo, with the help of its Rule Matrix of Taxation, since this law provides for the granting of tax benefits through these two exoneration institutes. We will then apply the conclusions regarding the legal nature of the two exoneration figures chosen, to the case presented by the law of IPVA of São Paulo, aiming to prove the correctness of those conclusions