Igualdade tributária: a outorga de tratamento favorecido para as microempresas e empresas de pequeno porte sob o prisma da ponderação dos princípios constitucionais

Abstract

Equality, considered as a corollary of Justice after a long and discussed philosophic evolution was nowadays raised to the condition of constitutional principle in most of occidental juridical ordinations. Its essence presupposes a unit to compare subjects related to each other in a factual situation chosen by a guider criterion which it is pertinent to, used with a specific finality which countersigns it. In Brazilian juridical order, this principle occupies a prominent position among the fundamental rights. It is considered by National Tributary System as one method of limiting the taxation power. In order to perform tax equality, the legislator has to elaborate some norm and the interpreter has to apply them properly to equal and unequal taxpayers. The quest for equality admits the imposition of differences, since there is a logical match between the factor used for discrimination and inequality established by it. This is what happens with the tax relief for small businesses, which are favored with a less burdensome taxation, due to their economic weakness. This apparent paradox between tax equality and favoring tax for small enterprises represents a problem to be solved by pondering the involved constitutional principles. As the weighing up is normally done by the Judiciary, it is up to perform the relevant evaluations and decide justly, rejecting unjustified inequalities or the assignment of hateful privileges. In this context, this theoretical search based on deductive method and a case study as an auxiliary proceeding, aims to analyze the application of tax equality principle, especially in juridical universe of small business enterprises, expecting to contribute for a deeper discussion on the importance of them in national social and economic development.