New Prospects for the Legal Qualification of Tolls in Brazil
| Autor | André Castro Carvalho |
| Cargo | LL. B. and LL. M. from University of sao Paulo, Brazil |
| Páginas | 120-130 |
New
Prospects
for
the
Legal
Qualification
of
Tolls
in
Brazil
André
Castro
Carvalho'
"El
autor parte del contexto histórico para discutir el
tema
de
la
recolección
de
peajes en Brasil realizadas por las
empresas concesionarias de vías en dicho país. Igualmente,
complementando
su estudio, se encarga de realizar
la
jurisprudencia de
la
materia."
Abstract
The scope
of
this paper covers a
brief
study
of
the legal
classification
of
toll
collection in Brazil, analyzing the
manner in which
the
matter
has
been viewed
up
to
the
present and finalizing
with
my
proposal
of
qualification.
The reason for a study which covers a
theme
which
h·as
apparently been settled
is
its constant resurgence in
the
practice
of
Brazilian
highway
concessions, usually in a
distorted fashion. lnitially, the paper will cope
with
the
beginning
of
concessions in Brazil and
how
the academic
community
views
the
matter, followed by
an
analysis
of
the Extraordinary Appeal
N°
181
,475-6/RS
ofthe
Federal
Supreme Court, frequently used, erroneously,
as
a basis
to
classify the legal nature
of
a
toll
as
a tax.
An
analysis
of
the
jurisprudence resulting
from
these discussions
is
m a de based on
the
S tate
of
Sao
Paulo, where
the
largest
number
of
highway concessions in Brazil
is
located,
as
well
as
a verification
of
the
place
of
toll
structure
in
the
judicial structure. Finally, we propase a
form
of
legal classification which will depend on the essential
characteristics governing the collection
of
tolls, in each
instance.
1. lntroduction: The "Resurgence"
of
an
Old
Discussion
and
its Practica! Effects
The discussion
about
the
legal classification
of
toll
is
not
a
new
one; also, scholars have dealt incessantly
with
the
question, when
attempting
to
legally define
the
term.
Sorne
of
their impressions are mentioned, from
time
to
time,
during
our
brief
analysis. The courts have already
judged
this matter, declaring
their
opinions; however
the
interpretation
ofthese
judgments
by sorne scholars,
ends
up
being slightly biased, by
not
taking
into
consideration
the
context
or
the
specific circumstances
in
which
the
judgments
were m a de and
al
so,
sometí mes,
it
includes a large degree
of
an
ideological content,
with
respect
to
toll
charging1•
The main
argument
is
the erroneous assertion
that
the Federal Supreme Court
has
consolidated its
understanding
about
toll and its legal nature
as
a tax.
The appeal
most
frequently invoked
when
this matter
is
discussed
is
Extraordinary Appeal No
181
,475-6/RS in
19992:
it
registe red in its summary
the
legal classification
of
toll
as
a tax,
but
it
refers exclusively
to
the question
of
the
toll-stamp.
lt
is
well-known
that
the
institution
no
longer exists in the
nationallegal
system, however it
was unavoidably
recognized-
at
that
time-
as
a tax
due
to
its
own
legal nature. Therefore,
it
is
an
interpretation
that
cannot be applied
to
present day situations,
involving
the
collection
oftolls
by prívate entities, under
a regulation
of
concessionaires
of
public services -
as
will
be demonstrated
below
3•
1 n
other
words,
the
scope
is
not
to
define
the
legal nature
of
toll
but
to
determine
how
the
legal system and the
laws qualify
it
nowadays, based on the characteristics
that
have been adopted
for
the
specific service. After
all,
it
is
ineffective concluding
that
an
institution
is
"A';
based on doctrinal inferences
when
its characteristics
lead it
to
be interpreted
as
being
"B".
Id
est, there
is
no
practica! value in being attached
to
the classical
definition
that
toll
has
always had
the
legal nature
of
a tax (by inferring
it
under
an
"innate" nature
of
this
LL.
B.
and
LL.
M.
from
University
of
sao
Paulo, Brazil. Post-Graduated degree
on
Public Law.
Currently
studying
for
a PhD
degree
on
Economics, Finance
and
Tax
Law at
University
of
Sao
Paulo. Legal Adviser, Brazilian
Highway
Concessionaires
Association-
ABCR
and Brazilian National Un ion ofTurnpikes, Bridges and Tunnels Concessionaires
-SINCROD. Professor
of
Administrative
law
at Sao Bernardo
do
Campo
law
School.
The social-economic
function
oftoll
is
often
overlooked
in these discussions. Fipe & Lastran (2003,
p.
20)
prepared
a
study
in
which
the
tolls are considered
as
a mechanism
which
induces
the
efficient
use
ofhighways
and
serving, moreover,
to
reveal
the
cost
of
road
transportation
and
"(
...
)
to
lead
the
userto
a
dimension
the
demand
for
highway
transportation
in
order
to
maximize
the
net
social
benefit
ofthis
transportation':
In
other
words,
it
works
to
boost
the
use
of
other
means
oftransportation.
Supreme Federal Court. Second Panel.
Rapporteur
Justice Carlos Velloso.
Judged
on
4 M
ay
1999. Published in Official Federal Journal
on
25
June
1999.
Moreover,
it
must
be
considered
that
this
case has
not
been
decided
by
the
Plenary
of
Supreme Federal
Court
but
by
the
Second Panel. Thus, it
is
not
possible
to
identify
it
as
a
fully
understanding
of
the
Supreme Court.
Para continuar leyendo
Solicita tu prueba