Do dever fundamental de pagar imposto ao dever-poder de instituir imposto no Estado Democrático de Direito brasileiro: o leading case do ITCMD com conexão internacional

Abstract

The present work aims to investigate and analyze the reason for the degradation of the Brazilian tax matrix idealized by the constituent parliamentarians of the Federal Constitution of 1988, the so-called "Citizen Constitution", the result of a long and troubled process of redemocratization. It will seek to investigate potential causes of the omission of post-constituent parliamentarians both in the exercise of derived power and/ or reviewer, as in the infraconstitutional legislator. The development of the work is based on the analysis of the doctrinal concepts of Constituent and Derivative Powers, Democratic Rule of Law, Federalism, Fundamental Duty to Pay Taxes in the Doctrine of Nabais, Tributary Matrix, Tributary Competence, transacting with other concepts such as the Fiscal State, the tax burden, the STN and its regressivity, Equity and Justice, the concentration of income, public management, etc. Will also be made the analysis of the judgment of RE 851.108-108SP, which dealt with the tax incidence of the tax on the transmission cause mortis and donation (ITCMD) related internationally with special reference to the constitutional provision of 155, §1, Inc. III. Finally, it will be analyzed and answered, from the point of view of the author, if the constituent legislator when editing the Citizen Constitution establishing the Democratic State of Law, established in a compulsory way the exercise of the Duty-power to institute all ordinary taxes, to correct the distortions of the tax matrix unjustly regressive, as well as providing the financial sustainability of the Federation with the exercise of the fundamental duty to pay tax of the Brazilian citizen in the face of the challenges of providing the realization of building a free, fair and solidary society.