The average Brazilian was already familiar with taxes long before this homeland – now a colony – has even conceived of being an independent country. The Portuguese crown was widely present from the start, establishing in the 1530s the so-called “Foral,” a document that provided for government charges, such as taxes on the extraction of Pau-Brasil and gold from deposits.
With the independence in 1822, the Brazilian society started contemplating constitutional taxes. The Constitution of 1824 provided in its Article 179, Item XV: “No one shall be exempt from contributing to the expenses of the State in proportion to their duties[1].” Since then, the Federal Constitutions that followed the end of the monarchy, the Old Republic, the Military Regime, and the restoration of democracy have always had at least one point in common: the provision for the payment of taxes.
Currently, the main activity of the domestic tax system is to finance the State and its activities. It is with mastery that scholar Antonio Henrique Lindemberg Baltazar asserts:
Where the capitalist economic system is adopted, there are few ways of obtaining funds in order to finance state activities, namely: (i) taxation; (ii) direct intervention in the performance of economic activity; (iii) issuance of currencies; (iv) raising loans. Thus, if we do not want an interventionist State, indebted or enduring an inflation crisis, taxation should be supported, because without it there is no other way out than the direct exploitation of economic activity by the State. In this sense, taxation becomes pivotal in the existence of a country where economic activities are usually carried out by the private sector, in a regime of state freedom[2].
It is worth remembering that taxes are also important means of extrafiscal activity. When I refer to extrafiscality, I mean both immediate and refractory, equally important aspects, but with different developments.
What I call immediate extrafiscality is that recognized by the legal rules themselves. This is the case, for instance, of IPTU (Urban Real Estate Tax). The tax set out in Item I, Article 156 of 1988 CRFB (Brazilian Federal Constitution) is endowed with the so-called “progressivity in time,” whereby its rate progressively increases when the taxpayer does not give a social function to its property. The extrafiscality in this case lies in the attempt to oblige the owner to utilize his property or land, avoiding the use of the property for mere real estate speculation.
Present especially in the economic sector, extrafiscal taxation is an important tool between the State and the Market. In this sense, and as another example, Professor Bruno Pinto Coratto points out about the Tax on Industrialized Products:
With such a wide range of possibilities, IPI has a predominantly extrafiscal function and has great potential to be an instrument for interventions in various sectors of the country. Under these conditions, exaction can be used, for example, to foster the growth of domestic industry: it is enough for the government to increase the rates levied on imported products, causing a rise in prices to encourage the sale of domestic products. On the other hand, if a downward trend in the quality of certain products from our country is observed by a certain sector of the industry, the State may reduce the rates levied on imported products, making the market more competitive, compelling the Brazilian industry to improve the quality of its products, which brings benefits for the consumer.[3]
Refractory extrafiscality, in turn, is much more present in everyday life than one might wonder. This is because behaviors linked to tax activity surround us on all sides, and more directly in what we consume. To do so, it is enough to observe the existence of the Pink Tax – a subject already addressed in my text Imposto Rosa: o preço de ser mulher[4] [Pink Tax: The Price of Being a Woman] – an expression coined to figuratively refer to the higher price that women have to pay for products earmarked for them, as if in fact the price of those were calculated with the incidence of a tax that does not reach the goods for the male public.
I also point to what happened in the IPI-Cigarro (Tax on the industrialized product cigarette) in 2011. The increase in the rate on the product over the last decade has caused a dramatic drop in its consumption[5]. From this, the two aspects discussed above are drawn: the immediate one, that is, the discouragement of smoking, and the refractory one, such as the cascading effect generated by the decrease in the sellers’ profit margin when trying to maintain the prices of the pack, which in turn causes the sale by fewer establishments and hinders access to the product.
It is true that many refractory effects caused by extrafiscal taxes occur in line with other efforts, such as – still on the subject of smoking – the prohibition of smoking in closed places by Law 9294/96.
I note that those who think that taxes have ceased to be merely tax collection in recent years are misled. In 1976, Decree-Law No. 1456, signed by Ernesto Geisel, came into force, which caused the collection of up to 85% more taxes on imported cars when compared to cars produced in the domestic industry. The standard that at first aimed to support the Brazilian automotive industry – immediate character – caused a 14-year deficiency in the automotive market, which to this day suffers from high prices owing to the absence of competitiveness – refractory effect.
In the year 2024, in view of the tax reform, it is worth asking ourselves how much taxes interfere with life in society. Far beyond the mere cost of public services and goods, the tax system is extensive, intricate, and the most effective way that the State has to intervene in the behavior of its citizens. Therefore, a double-edged sword is established, while immediately “taxes are the price of freedom, in the sense that they constitute an opportunity opened up by fundamental rights and aim to guarantee them[6]” and at the same time, they mediately shape social behaviors in order to meet the Government’s secondary interest – that of the government itself.
[1] Political Constitution of the Empire, 1824. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao24.htm
[2] BALTAZAR. Antonio Henrique Lindemberg. TCU Magazine, No. 114, Jan/Apr 2009. P. 45
[3] CORATTO, Bruno Pinto. O fenômeno extrafiscal no sistema tributário brasileiro. Âmbito Jurídico. 2016.
[4]BENITES, Flávia Santanna. Imposto Rosa: O preço de ser mulher. Available at: https://www.migalhas.com.br/depeso/344186/imposto-rosa-preco-de-ser-mulher.
[5] Tobacconomics Nota sobre Política. Política Tributária do Cigarro no Brasil. August 2020.
[6]TORRES, Ricardo Lobo. A constitucionalização do direito financeiro. In: SARMENTO, Daniel. (coord). A constitucionalização do direito. Rio de Janeiro: Lúmen Júris, 2007, p.982
Avaliable at: https://www.ernestoborges.com.br/extrafiscalidade-tributaria-consequencias-imediatas/
Autor: Flávia Sant'Anna Benites • email: flavia@ernestoborges.com.br • Tel.: +55 67 99984 1406
