Repetição do indébito tributário e o artigo 166 do CTN: das impropriedades interpretativas à necessária racionalidade

Abstract

The present study seeks to present an analysis of Article 166 of the National Tax Code facing the Federal Constitution of 1988. The starting point will be the economic, political and legislative context of the previous period of the National Tax Code. In this target, after analyzing the economic and political perspective of the 60s and 70s, marked by the military regime and by the strong economic recession, the civil legislation of that time will be examined, focusing on the concept of undue payment, from 1916 Civil Code perception. Then, the interpretations given to article 166 of the CTN will be verified, which encompasses the theory of unjust enrichment and the theory of economic repercussion or translation. The constitutional principles enshrined in the 1988 Constitution, applicable to the recovery of undue payments, will also be the object of this study, with emphasis on the principles of legality and legal security, the right to property and the principle of non-confiscation, isonomy, contribution capacity, reasonableness and morality. Subsequently, will be analised the jurisprudencial understanding that has been established since the 1960s and which until today prevent the undue paid ‘indirect’ tax reimbursement. Based on these assumptions, the aim is to demonstrate that the adverse context of the past has no echo nowadays, which justifies reanalysis of the old jurisprudential interpretation. In this scope, the unreasonableness of the permanence of the State's unjust enrichment will be demonstrated, based on the confusion between "public interest" and "reasons of State", in order to, at the end, propose an intermediate path between the criticized neoconstitutionalist doctrine and reasonableness in the application of the constitutional principles reiterated and promoted by the Constitution of 1988. An possible path could be the consideration of the purposes of de Federal Constitution in order to emphasize the relevant racionality of the tax brazilian system. Also includes the analysis of the duty to pay taxes and the right to recover what was unduly paid, as well as the demonstration of the possible application of the defeasibility of art. 166 of the CTN. The present research was perform based on prescriptive method in combination with quantitative and qualitative methods.