Programa de Pós-Graduação em Direito - PPGD/ICJ
URI Permanente desta comunidadehttps://repositorio.ufpa.br/handle/2011/3417
O Programa de Pós-Graduação em Direito (PPGD) iniciou suas atividades em 1984 e integra o Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA), que, por sua vez, se originou da Faculdade Livre de Direito do Pará, uma das mais antigas do país, fundada em 1902.
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Item Acesso aberto (Open Access) Benefícios fiscais de ICMS para a efetivação de direitos fundamentais(Universidade Federal do Pará, 2013-05-27) REI, José Anijar Fragoso; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075This dissertation relates ICMS (Taxes on Goods and Services) tax benefits and fundamental rights. It will be analyzed whether those benefits that unburden goods and essential services for the realization of fundamental rights must prevail, even if there is no prior agreement signed by the states and the Federal District, as required by article 155, § 2, XII, "g" of the Federal Constitution and Federal Complementary Law n. 24/75. The analysis focuses on the importance of fundamental rights under Brazilian law, as legal principles, therefore, they have high regulatory burden and should guide the interpretation of standards and devices. Therefore, taxation is justified as a source of funding for services and public policies that promote fundamental rights. Moreover, the ICMS (Taxes on Goods and Services) tax benefits should be granted with the safeguards provided in the Fiscal Responsibility Law, without prejudice to combat the use of these instruments to attract economic enterprises, which do not bring the proper return for the rights to the population. However, if the activity benefited provides the realization of fundamental rights effectively, there will be compliance with the existing legal principles. Regarding the ICMS (Taxes on Goods and Services), we conclude that even if the tax benefit was not preceded by covenant of CONFAZ (National Council of Treasury Policy), as required by the Constitution and the LC 24/75, should be considered constitutional, whenever the fundamental rights of the citizen are guaranteed. In reality, the financial burden of this tax falls on the final consumer, then, it is authorized the non- incidence of ICMS (Taxes on Goods and Services) on goods and services which are essential to the enjoyment of rights such as health, education and food.Item Acesso aberto (Open Access) A dívida dos municípios paraenses que aderiram à municipalização do ensino e a norma constitucional permissiva de retenção de verbas transferidas: um estudo de caso sobre o estado do Pará(Universidade Federal do Pará, 2011-05-16) LOBÃO, Simone Ferreira; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075This dissertation will look into the conditions of the municipalities of the State of Pará, that have adhered the municipalization of the education in the 90‘s, which have ceased conveying the payers‘ financing contributions to the government of the State, which have churned up a considerable debit before the State Financing Security Fund. It is about a complexity of the Brazilian federalism, yet to be sorted out, which is, therefore, worth being examined. Thus, the general goal of this research is based on the norm extracted from the Art. 160, a unique paragraph of the Federal Constitution – presenting some changes in the Constitutional Amendments (03/93) and (29/00) – authorizing the retention, by the State, of the reasonable values to the Municipalities, caused by the State tax-collection participation, in case of a municipal debit existence. This study was conducted by two leading up questions. First, it consisted in analyzing whether the municipalities were reliable to develop the public policies upon their material competence, independently of the money, transferred by the Union and the State. In parallel, the second investigating inquiry would be whether the collection through retention would reflect on the fundamental rights of the population, under the municipal power. On the face of these inquiries, as it is the first assumption of this dissertation, brought in the presentation of this research-project, I have affirmed that the autonomy maintenance of the State of Pará‘s municipalities would be unviable just with its own tributes collection. And the second assumption consisted in the affirmation that, in case of the implementation of retention, the municipal debtor would have a great impact on the budget, thus bringing about a hefty difficulty in the public policies concretion, related to the human rights, on the verge of being restrained. I have therefore pondered upon the offensive fundamental rights order, the municipal autonomy and, therefore, the federative alliance itself. In the purpose of analyzing the fullness of such assumptions, this dissertation was broken into three chapters. The first chapter was dedicated to the essential concepts of the academic work development, as the difference between the positive law language and the science of Law language; between the norm and norm texts; the concept of juridical norm; its classification between conduct and structure norms; as well as general, abstract, individual and concrete norms. Moreover, I shall present the model of rules and principles as normative species, beyond the conception of the juridical system. The second chapter is conveyed to the study of federalism and the Brazilian political entities financing system and its importance to the human rights concretion. In the third and last chapter, I shall specifically discuss about the debt of the municipalities which have adhered the municipalization of the education: from the analysis of a great debtor.Item Acesso aberto (Open Access) Equalização fiscal: o fortalecimento do pacto federativo e dos direitos fundamentais(Universidade Federal do Pará, 2015-05-12) AMANAJÁS, Grace Osvaldina Pontes de Sousa; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075The fiscal equalization is a form of income transfer between the federal entities whose primary goal is to provide the recipients equality in the provision of public services. This form of transfer is based on strong cooperation between the entities in meeting the goal of reducing regional inequalities in the ability to provide essential services. The Constitution has, among its fundamental principles, the reduction of inequalities between regions, however, the relationship between the federal entities in our country is still guided on criteria that do not favor mutual aid. The Brazilian federation, which historically has gone through centralization and decentralization, today aims to increase the autonomy of federal entities. In this goal, the Constitution of the Republic has currently increased powers granted to the federal entities. In order to fulfill its constitutionally established obligations, and increase their own economies, Member States began granting tax incentives in masses, leading to the renouncement of income and exacerbating competition in the collection of taxes such as GST. This practice goes against the goal of equitable development between regions. In the analysis of the forms of transfers currently performed in our country, there is the freezing of the coefficients and the use of indicators criteria that do not reflect the concern to equalize the capacity of regions. In more developed federations, the fiscal equalization has been adopted, along with other redistributive transfers as a way to provide greater assistance to Member States with lower potential revenue collection, to the extent of their needs. Through the comparison between the federations to adopt the fiscal equalization, and federal relations in Brazil, considering the constitutional principles and the role of the Central Government, weighting is performed on the possible use of tax equalization mechanism in our legal system.Item Acesso aberto (Open Access) Guerra fiscal: validade jurídica da glosa de créditos de ICMS(Universidade Federal do Pará, 2014) SEFER, Tiago Nasser; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075The dissertation focuses on the ICMS tax war, which is a phenomenon in which the states seek to attract companies to its territory through tax breaks. To grant ICMS tax break is required unanimous consent of the States under the CONFAZ, which is very difficult. Thus, it has become common that when an irregular incentive is granted for certain companies by a state of origin, the state of destination does not recognize the ICMS credits generated, based on Article 8, I from the Supplementary Law 24/1975. The majority doctrine has been pacified towards being against this non-recognition, and the Supreme Court doesn’t have yet a definitive position on the issue. The text proposal is to build a sound doctrine that opposes the majority and defends the possibility of disallowance of ICMS credits arising from unconstitutional tax breaks. We discuss issues such as rule of law, validity, fiscal federalism, taxpayer fundamental rights, rule incidence matrix, tax liability, non-cumulative system, ICMS, and disallowance of credits. After using the subsidies provided, we hold our thesis as to authorizing the act of credit cancelation.Item Acesso aberto (Open Access) A imunidade tributária dos templos de qualquer culto: um olhar sob o prisma da constituição(Universidade Federal do Pará, 2010) OLIVEIRA JUNIOR, Afonso Carlos Paulo de; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075The tax immunity of temples of any cult, enshrined in Article 150, VI, "b", of Brazil‘s Constitution, is an institute that, given the broad interpretation the major part of the national doctrine and the Brazilian Supreme Court itself give it, involves a situation of apparent exception to equality which deserves further reflection. Taking into account that such instrument is considered immutable clause, since it consists on a kind of defense of religious freedom, the theoretical path begins with a discussion about what is the religion itself, and then it tries to establish a basis for the discussion about what is this freedom. With this premise set up, the efforts are turned to Tributary Law dogmatic, to show, initially, what are the immunities and, then, which one is the interpretation of contemporary scholars in the area about the so-called religious immunity. In the next stage, the necessary tools to the demonstration of the conception of science and of Law demanded for the interpretation of the tax immunity of temples, in accordance with the Constitution, are provided, and, in the end, aspects of this institute, from the perspective of some constitutional principles, as equality and secularism, are analyzed. Thus, because of inconsistencies between such institute (or, at least, amongst its most common interpretations) and other constitutional values of greater importance, finally, some ideas about possible ways to a better solution of the issue are proposed.Item Acesso aberto (Open Access) Isenções fiscais e proteção ambiental: entre o poluidor-pagador, o usuário-pagador e o protetor-recebedor(Universidade Federal do Pará, 2016-09-02) BRITO, Luis Antonio Gomes de Souza Monteiro de; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075This study aims to analyze the legal validity of the green tax exemption in relation to the environmental-legal principles of the polluter-pays, the user-pays and the protector-receiver. Therefore, in the first chapter is going to be done an analysis essentially propaedeutic, to feature the Law, presenting its sources and the concept of legal system, legal sanction and legal norm, the latter emphasizing the distinction between rules and principles and the characterization of validity. In the second chapter is going to presented the economic fundaments of environmental taxation, with a generic presentation of the economy of natural resources and the characterization of them as common resources and the economic definition of externality and explicitness of the means available to its elimination with the market extension or with the market correction. In the third chapter is going to be done the legal structuration of the matrix-principle of the economic-environmental efficiency, which is considered the common legal-normative basis of the legal-environmental principles of the polluter-pays, the user-pays and the protector-receiver. The fourth chapter is going to be dedicated to the conceptual construction of the green tax exemptions, delimiting them in relation to the general tax exemptions and demonstrating specifically its potential extrafiscal inductor of ecologically beneficial behaviors feature. Lastly, based on the results obtained within the last chapters, is going to be analyzed the relation between the green tax exemptions and the protector-receiver principle and after with the polluter-pays and the user-pays principles, then finally define about the validity or the invalidity of that tax benefit against the economic-environmental principles.Item Acesso aberto (Open Access) A renúncia de receita onerosa como política extrafiscal afirmativa do acesso à saúde(Universidade Federal do Pará, 2014) SILVA, Maria Stela Campos da; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075This research involve financial legal, tax and administrative, especially with regard to public health policies. Based on the theory of the political philosophy of Amartya Sen's health, from the viewpoint that the state not only fulfills offer services to society, but must ensure that as many people as possible have access to such services that the fact comply with the needs of each; research, after enunciating the ways the state can waive tax revenue for through a policy extrafiscal attract second (companies) and the third (nonprofit corporations) society, identifies the legal forms that Brazil has been using since the last administrative reforms to attract the private sector to establish partnerships of various kinds for the alternative to him, offering more health for the population.At that stanchion the thesis raises some measures of internal and external control is exercised by organs that carry out these activities in Brazil, as the prosecutor, civil society, the Audit Courts to identify the key legal issues that these partnerships State and second and third sector face in the provision of health services.Finally, after a comparative analysis of structures with waiver of income on health in other countries , from research already undertaken in Brazil on certain species of resignation revenue for health, as studies of the Instituto de Pesquisa Econômica Aplicada (IPEA) and Regulatory Agencies area National Health (ANS) and National Health Surveillance Agency (ANVISA), correlating them to reports of analyzes of accounts of the federal government in recent years by the Court of Union, seeks to demonstrate the quantification of waivers in general revenue in relation to targeted health care to the end, suggesting to country implementation techniques that imply waiver of revenue in a mandatory direct consideration of the taxpayer benefited gaugeable the Public Entity.Thus,through exemptions costly attempts to demonstrate the possibility of circumventing the problems better legal waivers of free prescriptions in favor of increasing the distribution of health services in a more qualitative.Item Acesso aberto (Open Access) Renúncia de receita tributária: o caso do estado do Pará(Universidade Federal do Pará, 2012) MALCHER, Carolina Sequeira Zurita Gama; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075This paper aim to assess the institute of tax waiver. The practice of offering tax incentives which results in tax waiver is widely spread all of the world to assist the development of strategic economical segments, disadvantaged regions and groups of taxpayers, however, it should not happen indiscriminately, because it can affect the balance of public finances. It is in this statement which lies the doctrine of tax expenditure which equates, for budget purposes only, the losses of revenue from the tax waivers as the government expenses. Nationally, the concern with the amount and control over the tax expenditures lies in the Federal Constitution of 1988, which determines, on the article 165, § 6th that the project of budget law will be followed by regional demonstrative of the effects of tax waiver. The theme of the tax waiver gained popularity with the advent of the Complementary Law nº 101, dated on May 4th, 2000, named as Fiscal Responsibility Law, which establishes regulations of public finances oriented to the responsibility of tax management; adopts the international concept of tax waivers as tax expenditures; and incorporates in the budgets laws the financial effects of tax waivers. Besides the requirements presented in the Fiscal Responsibility Law and the compliance of the disposed on article 165 of the Federal Constitution, the concession of tax exemptions should always concur with the promotion of social welfare, or rather, for the offering or widening of tax incentives which results in tax waiver is necessary the existence of a public interest that justifies the act, and gives legitimate to this waiver. Besides the theoretical approach of the institute in question, this current research aims to verificate, in the concrete case, the use that the State of Pará makes of this institute.Item Acesso aberto (Open Access) Renúncia fiscal heterônoma de ICMS na exportação no estado do Pará(Universidade Federal do Pará, 2012) SOUZA, Victor Renato Silva de; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075O presente trabalho faz análise, sob a égide do federalismo, da renúncia fiscal heterônoma do Imposto de Circulação de Mercadorias e Serviços (ICMS) para exportação introduzida pela Lei Federal Complementar n.º 87 de 13 de Setembro de 1996, Lei Kandir, posteriormente posta pela Emenda à Constituição de n.º 42/2003. Aborda aspectos da autonomia federativa dos Estados Membros, detentores da competência tributária de ICMS, e procura esclarecer os conceitos de imunidade e isenção tributária, competência e autonomia para verificar a possibilidade de violação à autonomia dos Estado mediante usurpação de competência tributária, bem como verificar as perdas fiscais decorrentes da referida renúncia fiscal no Estado do Pará.Item Acesso aberto (Open Access) Renúncias de receita de ICMS destinadas ao setor minerário no Estado do Pará(Universidade Federal do Pará, 2017-07-04) CONCEIÇÃO, Luan Pedro Lima da; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075The present work is inserted, primarily, in the Tax and Financial legal areas and has as its central purpose the legal validity analysis of revenue waivers relating to the Tax on Transations Relating to the Movement of Goods and the Provision of Interstate and Inter-municipal Transport Services and Communication (ICMS) destined to the extractive mining sector in the State of Pará. For this purpose, the work is initiated through an eminently propaedeutic stage in which fundamental legal definitions for the development of the research are addressed, and the structural legal basis of the thesis is delimited. Are analyzed, also, the revenue waivers through the Theory of Law as prizes or positive sanctions in a legal promotional context. In the second stage of the work, the current desonerative policy for the State of Pará mining sector is exposed so that, in the third stage, the main financial and tax charges on mining are presented. In the fourth stage of the work, one enters into the legal analysis of the revenue waivers, wondering about the validity if the mentioned exemptions. In the last stage of the research, the exemptions are analyzed under the approaches of legitimacy and economicity, moving towards a finalistic approach both environmental and federative. To briefly summarise, the present work aims to inquire about the validity of such revenue waivers in a context in which the Public Authority assumed for itself the responsibility for the implementation of fundamental rights, with taxation being its main source of funds for this purpose.