Ganha mas não leva, perde mas não paga: a modulação temporal de efeitos em matéria tributária

Abstract

This work proposes to analyze and establish the possibility of the Federal Supreme Court to restrict the temporal effectiveness of its decisions in tax cases, subverting the fundamental guarantees assured to taxpayers. There is an explanation that the great problem existing in the use of this institute does not concern its entry into the Brazilian legal system through art. 27 of Law n. 9.868/99, but that the semantic vagueness of the concept of legal security and exceptional social interest, conditioning factors of modulation, allows its unreasonable use only to satisfy mere justification purposes. A case study was carried out on the Extraordinary Appeal 714.139/SC (Topic 745), approached from the perspective that at no time will the Supreme Court be fulfilling its role of giving greater effectiveness to the constitutional text, legitimizing charges made in disagreement with the National Tax System, on the contrary, the maintenance of an unconstitutional law encourages the State to edit new unconstitutional norms.