The rapporteur of the Legal Framework for Gaming in the Chamber, Deputy Felipe Carreras (PSB-PE), made available to the members of the Working Group (WG) that analyzes the matter, a document with the main points of the text that will be presented by him. Of the thirteen topics highlighted, one of them concerns the creation of a new tax, more specifically a Contribution to Intervention in the Economic Domain (CIDE).
According to Carreras, the intention is "to follow the direction of creating a CIDE, whose proceeds are used for specific purposes such as combating corruption, education, health, sports and tourism (in this case, allocating resources to Embratur)."
Carreras' intention is commendable, but there is an important point that must be observed, otherwise this contribution is already born unconstitutional. The Federal Constitution, by granting in its article 149 powers for the Union to establish the CIDE, establishes that the proceeds of its collection must be destined to reach the purpose that motivated its creation, that is, the intervention in the economic domain.
As Eros Roberto Grau teaches, the economic domain is a gender, which includes two species: (i) the public service; and (ii) economic activity.
The public service is owned by the State and is always subject to public law. It is reserved to the State, but can be delegated to individuals through concession or permission.
The public service refers to the activity whose exploitation is private to the Public Power, due to collective needs or utilities. However, there are economic activities explored by the State that are not directly related to the welfare of the community, but result from an act of the State's will. Public service activities are those that the competent authorities, at a given historical moment, decide to consider them, whether for fiscal, strategic or economic reasons, such as oil, lotteries, in some countries tobacco and casinos.
It is a highly regulated segment of activity, as the State only allows what is expressly provided for by law.
On the other hand, there is the economic activity that, as a rule, belongs to individuals and the State only performs it in exceptional cases, subordinating itself, in this case, to the regime of private law. In this field, free enterprise prevails and the maxim that everything is allowed, except what is expressly prohibited by law.
In short, the economic domain has a double facet: (i) that of the public service, typical of the State and highly regulated; and (ii) economic activity, typical of individuals, with low regulation.
Interventional contributions, as explained by Roque Antonio Carrazza, appear as a mechanism reserved for the segment of the economic domain aimed at economic activity (of private individuals). It is a tool that the Federal Constitution made available to the State to intervene in a field dominated by free enterprise and low regulation, to encourage or inhibit certain conduct. In other words, it is an instrument to control a field in which the State has little interference.
CIDE does not reach the field of public services, as it is a field that naturally has high regulation, already controlled by the State, which has benefits and privileges arising from the collective interest it seeks to serve. Thus, alternative intervention mechanisms (such as CIDE) are unnecessary and are not the appropriate form of taxation of activities.
It turns out that the STF, when ruling the Allegations of Non-Compliance with Fundamental Precepts (ADPFs) 492 and 493 and the Direct Action of Unconstitutionality (ADI) 4,986, which discussed the Union's monopoly to exploit lotteries, established the understanding that lottery activities are public services.
Minister Gilmar Mendes, rapporteur of the processes, expressly recognized that not only "the doctrine frames lotteries as typical public service activities", but also "since 1932 [Decree 21.143], the legislator does not hesitate to attribute a legal regime of Public Law to these activities. The provision is also expressly contained in Decree-Law 6,259/44 and Decree-Law 204/67 itself."
Thus, any collection of CIDE on games of chance will be unconstitutional. After all, the interventional contribution, as it serves to indirectly regulate the economic order, can only fall on the activities of private individuals, managed by private law. Lotteries, as a public service, are beyond the scope of this contribution.
Therefore, Deputy Carreras, even though "the proceeds of the tax collection that will come with the regularization of gaming cannot and should not be restricted to making money for the government", unlike the imagined "CIDE Combustíveis (Fuels), provided for in law 10,336/01" , cannot be "one of the main references for this differentiated distribution of resources." If the intention is not to create (endless) litigation, it is better to think of a new tax, as this tax figure does not have the ties that CIDE has.
Rafael Marchetti Marcondes
Doctor and Master in Tax Law from PUC/SP. MBA in Sport Management by ISDE and FC Barcelona. Specialist in Tax Law from FGV/SP. Bachelor of Law from PUC/SP. Professor of Tax Law at EPD and IBET. Lawyer at Pinheiro Neto Advogados.
Source: Migalhas
