Constituição, propriedade privada e tributação: a possibilidade de adoção de políticas fiscais voltadas ao desenvolvimento sustentável

Abstract

This dissertation was developed within the "Hermeneutic, Constitution and Implementation of Rights” line of research, having as subject the taxation and the public policies. The main problem approached is the legitimacy of tax public policies of redistributive character before the right to property in the paradigm established by the Brazilian Constitution of 1988, your criteria and limits, as well as the reason of the low participation of the property taxes in the national tax collection, in a country with a large wealth concentration. As initial hypothesis, the study states that the constitutional text not only legitimizes, but also demands the adoption of such policies, in the search for a sustainable development. This research is justified for the necessity of accomplishment of the constitutional objectives, strengthened by the 2030 Agenda, with the intention of converging the economic, social, environmental, and goodgovernance dimensions of sustainable development, for present and future generations. The objectives were to analyze the relation between right to property and taxation, especially the role of the Constitution, the content of the right to property and the legitimacy of tax policies concerning patrimony taxes. In this regard, the hermeneutic-phenomenological method was used. The main conclusions pointed that, in the Contemporary Constitutionalism, the constitutional texts bring a project of transformation of the reality in which they emerge, which is a striking feature of the Constitution of 1988, in which the sustainable development is considered as a fundamental right/duty. Regarding the right to property, the research pointed that it consists of a complex legal relation, of intersubjective character, not confusing itself with the relation of domain between individuals and things. Such right, especially due to the constitutional provision of the property's social function, adds a series of positive duties to proprietors, demanding a convergence between the people’s and the community's interests. Thus, not only a distributive, but also a redistributive character is legitimized towards the property right, in favor of the construction of a material equality between individuals. Finally, regarding taxation, it consists in a fundamental duty of the citizens, so the idea of individuals' tax-paying capability is settled. It possesses a triple relation with the fundamental rights, being limited by them, and at the same time financing their protection and guaranteeing them in a direct way, by means of the extra-taxation. Therefore, the public policies by means of taxes for the correction of social and environmental problems are legitimate, as long as it considers the constitutional rules, regarding the guaranteeing of rights and its transforming project. The study analyzed the Brazilian tax system, with special attention to the patrimony taxes; and it was concluded that it is a highly regressive system, diverging from the constitutional rules, suggesting some corrections to turn it more progressive.