Intertextuality among legal subsystems: the Brazilian tax experience on 'revenue', 'tax' and 'inputs
| Autor | Cecilia Priscila de Souza - Fernando Gomes Favacho |
| Ocupação do Autor | Hold a Master's Degree in State Law by the Pontifical Catholic University of São Paulo (PUC-SP) and are professors at the Brazilian Institute of Tax Studies (Instituto Brasileiro de Estudos Tributários) |
| Páginas | 195-231 |
Special Workshop: Communicational eory of Law • 195
Intertextuality among legal subsystems:
the Brazilian tax experience on
“revenue”, “tax” and “inputs”
Cecilia Priscila de Souza
Fernando Gomes Favacho1
Abstract: This paper deals with law “as a text” and, therefore, impossible to be
detached from its context. It includes the denition of legal concepts, and how to
establish criteria for the use of such concepts when conicts occur among them.
It presents the study of “intertextuality” as a facilitator of legal interpretation,
establishing the textual and contextual boundaries of normative discourse in
conict resolution. Given these assumptions, we apply the study of intertex-
tuality in known controversies on the denition of three concepts in Brazilian
tax law, namely, “revenue”, “tax” and “inputs”. This text is a study on the
dialogue among dierent subsystems of the same legal system. To answer “what
are inputs”, for an example, tax aorneys who aim to use tax credits would say
“if water is used in the making of a product, is undoubtedly an input”. Some s-
cal agents would say “inputs are only raw materials, intermediate products and
packaging materials, as the legal tax regulation says”– and, with this thought,
water could not be used as tax credit. This simple question reects not only the
aporia of a concept denition, but also the dierent values of society and its
contingencies. It is imperative to discuss other issues, such as: Input to a tax
shall have the same concept denition of another one? Who denes the concept
of “input”: the doctrine? The laws? The jurisprudence? A technical report? The
legal concept may change according to social changes? Can it be detached from
reality? The (non)technical writing of a law, and its longevity in the crossing of
so many dierent legal systems could have changed the denition of the previ-
ous concept? These issues transcend the limits of Tax Law and reach the eld
of philosophy of language, with discussions on how they form communication
1
e authors hold a Master’s Degree in State Law by the Pontical Catholic University of
São Paulo (PUC-SP) and are professors at the Brazilian Institute of Tax Studies (Instituto
Brasileiro de Estudos Tributários).
196 • XXVI World Congress of Philosophy of Law and Social Philosophy
processes and its failures (either because the participants do not share the same
concepts - and to what extent these dierences can be accepted in this language
game, as taught by Robles).In this sense, in order to solve communicational
conicts, wondering if there is a way to dene these concepts as to eliminate
the issues related to vagueness and ambiguity, we begin to look into formal
logic, but always considering empirical problems: as a process of formalization
of knowledge, as taught by Barros Carvalho.
Keywords: Legal Intertextuality. Denition of Concepts.Legal TaxConcepts.
1. Introduction
What is input? Those who aim to use the credit coming from
non-cumulative PIS and COFINS would say that the energy used in the
making of a product is undoubtedly an input. Tax experts2would say
that inputs are only the raw materials, intermediate product and pack-
aging materials, as the Tax on Manufactured Products Regulation says.
And, with this thought, energy costs could not be used to reduce the
amount due as social security contributions. In a simple quest to answer
the aporia of a concept denition, the society and its contingencies are
reected: its multi-value aspect.
We shall continue the quest: what is an input? What does the law
(in the broad sense) say, or what is it to economy? Input to PIS/COFINS
must have the same concept denition as to IPI? In law, who denes the
concept of input? The doctrine? The laws? The jurisprudence? A tech-
nical report? The legal concept may change according to social chang-
es? Can it be detached from reality? The (non)technical writing and its
longevity in the crossing of so many dierent legal systems could have
changed the denition of the previous concept? Is there a presupposed
concept?
The scope of a term among users of legal communication and its
interpretation in this eld of knowledge are issues that transcend the
limits of Tax Law and reach the eld of Philosophy of Language, with
discussions involving the formation of communication processes and
its failures (considering that the participants do not share the same con-
cepts and examining the extent to which these dierences can be ac-
2
is is what is stated in the Normative Instructions of the Federal Revenue Oce
247/02 (amended by 358/03) and 404/04.
Special Workshop: Communicational eory of Law • 197
cepted). In this plan, we wonder if there is a way to dene the concepts
in order to eliminate the issues related to vagueness and ambiguity we
begin to look into Formal Logic, but already considering empirical prob-
lems: as in a process of formalization and deformalization of knowledge
to pursue the ideal for rigor and univocity.
With that, in the introduction we convey the rst assumption/
conclusion, namely: in order to solve questions involving communica-
tion noises, syntactic rules and semantic issues, we can use language
technologies to approach the object of study.
This paper presents the study of intertextuality as a facilitator of
legal interpretation, establishing the textual and contextual limitations
of normative discourse in conict resolution, in casu, in relation to tax
activities.
At the beginning, we will deal with law as a text and, therefore,
impossible to be detached from its context. We will also present intertex-
tuality as an informant principle of interpretation, addressing the need
for systemic interpretation before the partial. Later we will also address
taxonomy and the denition of legal tax concepts, establishing the cri-
teria for the use of the concepts when conicts occur among denition
standards. We will also explain the role of decisions and the relationship
of concepts with the authority that denes them (doctrine, law and ju-
risprudence). Given such assumptions, we will apply the study of inter-
textuality in known controversies about the denition of three legal tax
concepts, namely, revenue, tax and input. On a line, this paper is a study
on the dialogue among dierent subsystems of the same legal system3.
To address these issues, we will use the Communicational The-
ory of Law by Gregorio Robles, which alongside the Logical-Semantic
Constructivism advocated by Lourival Vilanova and developed espe-
cially by Paulo de Barros Carvalho, presents an analytical-hermeneutic
method, dealing with law as a text(limited to its context) and stressing
the activity of creation of the world by the jurist, instead of giving a mere
description.
3
e work ahead is derived from the conversation between two texts produced in the
academic sphere that, even with dierent objects, came from the same assumptions and
methods: the Master’s thesis of the Pontical Catholic University of São Paulo:Denição
do Conceito de Tributo(in a free translation: “Denition of the Concept of Tax”), by Fer-
nando Gomes Favacho, and Intertextualidade no Direito Tributário(in a free translation:
“Intertextuality in Tax Law”), by Cecilia Priscila de Souza.
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