O procedimento tributário de inspecção: um contributo para a sua compreensão à luz dos direitos fundamentais | 2011

Author(s) João Fernando Damião Caldeira
Advisor(s) Joaquim Rocha
Year 2011

Synopsis The object and purpose of the present study is the tax inspection, in a large sense, seen not only as constitutionally legitimated power, guided to fulfill de public interest of justice and tax equality, but also as an administrative procedure, seen as a set of acts with the main objective of checking and certifying that the tax reality is in compliance with the constitutional command. But, to fully comprehend the procedure we must first understand the tax inspection phenomenon as a power, so the methodology used in this study requires in first place to fit in the inspection in that dimension, characterizing it historically and organically and identifying the means that this power has at his disposal to fulfill the purpose of it´s creation. Only through this previous characterization we will be able to fully comprehend the tax inspection procedure as an instrument of the power to inspect. As we will see throughout the present study the tax inspection, in any of it´s dimensions, while power, or while proceeding, may, although constitutionally legitimated, collide with other fundamental rights, freedoms and guaranties, which are also constitutionally legitimated. It is certain that the public interest behind the tax inspection – justice and tax equality – may prevail over those rights, freedoms and guaranties, imposing their sacrifice to all individuals. But, that sacrifice cannot occur at any cost, in all circumstances. That sacrifice must be always minimized, by being demanded, adequate and proportional. So, those rights, freedoms and guaranties, are important formal and material limits that must guide and limit the tax inspection activity. Their violation, beyond the invalidity consequences of the administrative act that results from the procedure (violation of formal limits), when exceeds beyond reason (violation of material limits) cannot have other consequence than the civil responsabilization of the tax authorities and it´s agents, as well as the criminal responsabilization of the tax inspectors (without prejudice of the disciplinary responsability applicable, but that doesn´t affect the tax payer whose rights where violated).

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2018-02-07T17:39:28+00:00