Empresas de micro e de pequeno porte: regime constitucional e tributário

Abstract

The present work aims to clear the roots and the implications of favorable treatment to the micro and small enterprises, diving into the historical moment of its insertion in the constitutional text in 1988 and in its relation to other economical principles, to reduce the distance between the constitutional rules and the product of infraconstitutional legislator activity, in order to collaborate to the effectiveness of that treatment. To investigate the range of this treatment, it was necessary to delimit the micro and small enterprises particular concepts, considering their incorporation from the private law field by the Constitution, as well as the particular concept of favorable treatment, which was fixed from the comparison with the treatment that the other enterprises are submitted, also considering the tools authorized by the article 179 from Constitution, such as, simplification, reduction and elimination of the tax duties, such in the strict sense as in the quality of instrumental duties. During the touch to draw the outline of this treatment, it was observed a narrow relation to this principle with the persecuted purposes by Brazilian State (art. 3, CF/88), outstanding as an excellent tool of conciliation between the social and liberal values. It was met two routes to the effectiveness of this treatment. The first was set by the need of the approximation of the concepts and the systematic of tax accounting and collecting used individually by each person of Federation, and the second, in which the accounting and colleting systematic is unique, covering at the same time the taxes from all people. In these two hypotheses, there are many difficulties, as the analysis of federal and paulista SIMPLES and the paulistanos systems reveal, wich are far to reach the simplicity aimed by the art.179. Also the analysis conducted to the observation the increasing importance that the national constitutional complementary law has been assuming in face of this treatment, specially, in the face of the Brazilian federalism and to the distribution of the tax competence. Thus, the edition of the general rules about this taxation regime and the particular institution of one specific system and optional system of taxes to the micro and small business revealed as a measure of importance and urgency