This article aims to make a relation between the Brazilian taxation on digital goods, in light of the Federal Constitutional of 1988, and Jürgen Habermas’ theory of modernity.
Keywords: 1. Taxation. 2. Digital goods. 3. Jürgen Habermas. 4. Theory of modernity.
Este artigo tem por objetivo relacionar a tributação brasileira sobre bens digitais, à luz do disposto na Constituição Federal de 1988, com a teoria da modernidade de Jürgen Habermas.
Palavras-chave: 1. Tributação. 2. Bens digitais. 3. Jürgen Habermas. 4. Teoria da modernidade.
The digitalization of the economy is an unquestionable reality. The digital revolution that has taken place is currently changing the way the traditional markets used to work. Examples of such digital revolution are the internet, the artificial intelligence, the industry 4.0, the blockchains, the bitcoins, the apps, the e-commerce, the software as service (SaaS), the social media, the cloud computing, streaming, among others intangible goods.
Digital revolution can be considered as one of the biggest economic transformations ever since the Industrial Revolution. The impacts of the digital revolution are not only related to the emergence of a new economic sector, but also to the economy as a whole. With the new digital business models and technological development, the segregation of tangible and intangible goods has become a challenge.
The difficulties of this new reality, which is a result of a profound transformation of economic processes and paradigms, are faced not only by the market itself, on the relations between markets and consumers, but also by the State, while on the duty to regulate all the changes and the consequences related to economy, taxation, competition, labor, international relations, among other issues.
This context raises the debate regarding the taxation of economical facts related to the technological and digital development, considering the current Brazilian Constitutional and legal structure.
What can be seen is the State and tax authorities imposing the application of “ancient” or “outdated” rules to brand new unimaginable and unprecedented economical facts, causing conflicts between the authorities and the taxpayers and raising the question regarding the need of a constitutional tax reform.
In this study, brief considerations regarding the Brazilian taxation system and its applicability to the current digital economy as well as a relation of the scenario of digital revolution with Jürgen Habermas’ theory of modernity will be presented.
2. Brazilian taxation on digital goods and the Federal Constitution of 1988
The Brazilian tax system is based on the Federal Constitution of 1988. All matters regarding the taxation powers of the entities of the Federation (Federal Union, States, Federal District and Municipalities), its limits, applicable principles and the events that can be subject to taxation are stated on the Federal Constitution of 1988. Based on the constitutional directives, the entities of the Federation are allowed to create and charge taxes. In this sense, Humberto Ávila affirms: (ÁVILA, 2004, p. 21, our translation):
The Nation Tax System, which rules in detail the tax matters, keeps a relation with the Constitution as a whole, and especially with the formal and material fundamental principles - regardless if those principles are expressly or implicitly stated – and with the fundamental rights, mainly with the property and freedom guarantees; ‘the systematically fundamental principles’ (systemtragenden Prinzipien), that keep a bond with the power of taxation and give normative meaning to other principles, which are the republican principle, the Federative principle, the legal security principle and the equality principle.
The events that can be subject to taxes, the “standard norms of incidence”, are all already determined by the Federal Constitution of 1988 and, therefore, reflect what the Constitutional Power understood as economical facts that could be subject to taxes to be created and imposed by the entities of the Federation. In this respect, Roque Antônio Carrazza, full professor of the Pontifícia Universidade de São Paulo (PUC/SP), gives us a lesson regarding the taxation powers and the Federal Constitution of 1988 (CARRAZZA, 2010, p. 524, our translation):
The Constitution, when presenting the taxation powers, established – even if, sometimes, in an implicit way and with a certain margin of freedom for the legislator – the “standard norm of incidence (the archetype, the constitutional foundation) of each tax levy. In other terms, it pointed out the possible hypotheses of incidence, the possible active subject, the possible passive subject, the possible tax basis and the possible tax rate, of the various tax species and subspecies. In short, the legislator, when acting on its tax power, must be loyal to the “standard norm of incidence” of the tax, pre-established by the Constitution. The legislator (federal, state, municipal or district), when creating the tax, cannot run from the constitutional archetype.
Thus, legal or infralegal rules cannot go beyond the constitutional marks (CARRAZZA, 2010, p. 526). In a nutshell, the following events were elected by the Federal Constitution as events that should be subject to taxation and are constitutional “standard norms of incidence”: import of tangible goods, export of tangible goods, earing of income, earning of revenue, operations with industrialized tangible goods, credit, exchange and securities operations, estate properties, big fortunes, causa mortis and inter vivos transmission and donation of propriety and rights, operations related to the circulation of tangible goods, property of vehicles and rendering of services. Events that are not listed on the Federal Constitution cannot be taxed.
In contrast, digital goods are defined as (EMERECIANO, 2003, p. 83, our translation):
The digital goods, defined, are organized sets of instructions, in the way of over level language (the computer operates with the instructions transmitted in a low level language, which is the language that can be interpreted by the machine. The languages are of high or low level according to its bigger or smaller proximity to the human language), stored in a digital form, and can be interpreted by computers and by other similar devices that operate predetermined functionalities. They have specific differences such as intangible existence by the human sense and its transit, by network environments, since they are not joined by physical support.
From the list presented above it is clear that the Constitutional Power did not mean or intend to tax operations with digital goods, especially because they did not exist back in 1988 when the Federal Constitutional was enacted, a period when not even the internet was present in Brazil.
Thus, our current constitutional tax system was not shaped for the new moment of the economic history. As such, the Entities of the Federation have no Constitutional authorization or power to tax those new economic events, not unless they characterize an existent taxable event, such as the earning of income and revenue derived from the commercial exploitation of the digital goods, which can be taxed by the income tax and by social contributions.
However, taxpayers have been surprised by the attempt of the States of the Federation and the Municipalities, by means of new infra-constitutional laws, such as the Complimentary Law n. 157/2016 and the ICMS Convention 106/2017, as well as tax rulings, to tax those events, causing conflicts not only with taxpayers but also with themselves.
According to the ICMS Convention 106/2017, the States of the Federation are allowed to charge the State Value-added tax on sales of goods and services (ICMS) on operations with digital goods commercialized by means of electronic transfer of data (download). According to Complimentary Law n. 157/2016, the Municipalities are allowed to tax the licensing of software, the provision, without permanent transfer, of audio, video, images and texts by means of the internet.
Thus, both States and Municipalities are trying to charge the State Value-added tax on sales of goods and services (ICMS) and the Municipal Tax on Services (ISS) on the licensing of software as a service (SaaS) and the download of software, causing a conflict of taxation powers. Such scenario causes legal uncertainty to the taxpayers.
3. Jürgen Habermas’ theory of modernity
Modernity, for Jürgen Habermas, is a period of transformations in our society, originated in Europe, which began in the eighteenth and ended in the twentieth century. The effects of modernity have later spread to other continents. In a nutshell, Jürgen Habermas’ theory of modernity aims to analyze the origin of the modern western society, to diagnose its pathologies and to propose solutions for its correction. Thus, the theory has as purpose the rebuilding of the formation processes, the principles of organization and the crisis lived by the social formations along the years, becoming, as such, a broad evolutionary theory.
The theory understands the transformation processes of the society formations as collective learning processes. In this sense, according to Jürgen Habermas’ lessons, society would have the capacity of learning, overcoming less simple and less effective principles of organization in favor of new universal principles. Such overcome results on the perspective of an international market, organized around the relation of capital and labor. The transition between principles of organization to others comes with what Jürgen Habermas calls as “crises”, since the overcome of a pattern of organization means the detachment of a particular principle and the adoption of a more universal one.
According to Jürgen Habermas’ theory, there are differences between the processes of modernization and the cultural modernity. The processes of modernization refer to processes of rationalization present on the political and economic systems, whereas the cultural modernity refers to the automatization inside the “lived world”.
The “lived world” means the way that the people feel and live their social reality, their common experiences, language, traditions and culture. It represents what Jürgen Habermas calls as the “obvious” or “unquestioned”, comprehending the social space in which the communicative action allows the achievement of the communicative reason, based on dialogues and the strength of better arguments. According to Jürgen Habermas, the “lived world” has three structures or “subsystems”: the cultural, the social and the personality system, all ruled by social integration mechanisms, such as social control, socialization and learning, which are mechanisms ruled by the communicative action.
As complement of the “lived world”, Jürgen Habermas presents the “system”, adopting the perspective of an observer, an outsider of society. Such status allows for the description of social structures that guarantee society’s material and institutional reproduction: the economy and the State. As such, two society’s “subsystems” arise, money and power, which assure the systemic integration, ruled by instrumental reason.
When adopting Jürgen Habermas’ concept of society and the segregation between “lived word” and “system”, a distinction of “social modernization” and “cultural modernization” has to be made. The first refers to the changes that happened inside the “system”. The second refers to the changes that happened inside the “lived world”.
Thus, Jürgen Habermas’s theory of modernity refers to a series of transformations that happened to the social structures and, especially, to four types of processes: differentiation, rationalization, autonomization and dissociation.
The differentiation process means the collective learning that enables social structures to become more competent and effective for the solution of practical problems related to the material and symbolic reproduction of society. The autonomization process refers to the relative detachment of a “subsystem” to the social group, allowing its operation based on autonomous systems and the gain of freedom.
The rationalization process refers to the processes of institutional transformation according to instrumental rationality. In this process the means are adjusted to the ends, so that in order to achieve a determined goal effective means are imposed, with minimum of expenses, such as time, material, people, and undesired collateral effects and a maximum of desired benefits, such as profits and power. Effectiveness itself becomes a goal.
Jürgen Habermas believes that the rationalization process has a negative connotation, since it expels the argumentative reason which would allow the collective negotiation of the ends, the “last ends”, of the social structure transformation. As such, the economy and the State could transform their own effectiveness into the “lasts ends” without consulting the people involved or affected and imposing an unquestionable way of operation.
Lastly, the dissociation process disconnects the material production of goods and the domination of the true social processes of daily life. Such dissociation, which is also seen by Jürgen Habermas with a negative connotation, makes economy and power take on features of a naturalized reality, ruled by immutable laws.
Both rationalization and dissociation processes are considered, by Jürgen Habermas, as the “pathologies” or “crises” of society and caused the current displacement of the “lived world” and the “system” and also what the philosopher calls as the colonization of the “lived world” by the “system”. In this sense, the philosopher says that the colonization of the “lived word” (HABERMAS, 1987, p. 452, our translation):
“starts when: “critical imbalances on the material reproduction (which means, the direction crises accessible to the theoretical system analysis) can only be avoided by means of disturbances of the symbolic reproduction of the “lived world” (and that means crises subjectively experienced, threatening of identities or pathologies”.
The “pathologies” made the modern men submit to the laws of the market and to the State’s bureaucracy and the social structures to be ruled by privileged minorities, money and power.
The solution proposed by Jürgen Habermas for the “pathologies” is the reversion of the displacement and colonization systems in order to fit the “system” into the “lived world” and to keep the integrity of the whole to be controlled and ruled by all men involved and affected, so that the system’s “last ends” are freely searched by society. That way, the communicative reason can collectively make spaces for the action of instrumental reason.
4. The relation between the taxation of digital goods and Habermas’ theory of modernity
The digital revolution can be considered as one of the transformation processes of the society formations studied by Jürgen Habermas on his theory of modernity. It represents the society overcoming less simple and less effective principles of organization in favor of new universal principles, resulting on the perspective of an international market, organized around the relation of capital and labor.
As previously mentioned, the revolution is the result of a profound transformation of economic processes and paradigms. It represents the “cultural modernization” and reflects the “lived world”.
The “system” is the Brazilian current constitutional structure, dated from 1988, which is currently ruling the new moment of the social and economic history. The conflicts that arise from the digital revolution, caused by the overcome of the traditional economy and markets, especially regarding the taxation of the products of the digital revolution – the digital goods – can be considered as what Jürgen Habermas calls “crises”.
The changes to the “lived world” require changes to the “system” or “social modernization”. The imposing of a “system” or a constitutional system that does not reflect the social reality causes the displacement and dissociation studied by Jürgen Habermas, represented by the conflicts between the State, the tax authorities and the taxpayers.
The solution proposed by Jürgen Habermas for the “crises” is the reversion of the displacement and colonization systems in order to fit the “system” into the “lived world”. That means that the current Brazilian tax system must be changed in order to fit the new lived digital world.
5. Concluding remarks
The digitalization of the economy was not a fact that could be predicted by the Constitutional Power back in 1988. Internet, artificial intelligence, industry 4.0, blockchains, bitcoins, apps, e-commerce, software as service (SaaS), social media, cloud computing, are all part of the revolution that resulted on a new economic and technological reality.
The economical facts related to the technological and digital development must be taxed in respect of the equality between the traditional and digital markets. However, since the taxation powers are based on the Federal Constitution, which has become “ancient” or “outdated”, in order for such taxation to be legitimate the Federal Constitutional has to be amended. Therefore, the taxation of digital goods cannot be imposed before a constitutional reform has taken place. The “system” must be adapted to the “lived world”.
ÁVILA, Humberto Bergmann. Sistema Constitucional Tributário. São Paulo: Saraiva, 2005.
BRASIL. Constituição (1988). Constituição da República Federativa do Brasil. Brasília, DF: Senado, 1988.
BRASIL. Convênio ICMS n. 106, de 29 de setembro de 2017. Disciplina os procedimentos de cobrança do ICMS incidente nas operações com bens e mercadorias digitais comercializadas por meio de transferência eletrônica de dados e concede isenção nas saídas anteriores à saída destinada ao consumidor final. Brasília, DF, set. 2017.
BRASIL. Lei Complementar n. 157, de 29 de dezembro de 2016. Altera a Lei Complementar n. 116, de 31 de julho de 2003, que dispõe sobre o Imposto Sobre Serviços de Qualquer Natureza, a Lei no 8.429, de 2 de junho de 1992 (Lei de Improbidade Administrativa), e a Lei Complementar no 63, de 11 de janeiro de 1990, que “dispõe sobre critérios e prazos de crédito das parcelas do produto da arrecadação de impostos de competência dos Estados e de transferências por estes recebidos, pertencentes aos Municípios, e dá outras providências”. Brasília, DF, dez. 2016.
CARRAZZA, Roque Antônio. Curso de Direito Constitucional Tributário, 26. ed. São Paulo: Malheiros Editores, 2010.
CUMMINGS Rocky B. Taxation in the Cloud. Tax Trends, jan-fev, 2011. Available at: < http://heinonline.org/HOL/LandingPage?handle=hein.journals/jrnsttax29&div=21&id=&pag>. Acessed on November 11 2017.
EMERENCIANO, Adelmo da Silva. Tributação no comércio eletrônico. São Paulo: Thomson Iob, 2003.
FREITAG, Bárbara. Habermas e a filosofia da modernidade. São Paulo: Perspectivas, v. 16, 1993.
GIL, Antônio Carlos. Como elaborar projetos de pesquisa. São Paulo: Atlas, 1988.
HABERMAS, JÜRGEN. O Discurso filosófico da modernidade. Lisboa: Publicações Don Quixote, 1998.
___. The theory of communicative action. Lifeworld and system: A critique of functionalist reason. Vol 2. Boston: Beacon Press, 1987.
WHITE, Stephen K. Razão, Justiça e modernidade: A obra recente de Jürgen Habermas. São Paulo: Ícone Editora, 1995.
Nome do autor: Júlia Silva e Lima
Breve resumo do currículo: Júlia Silva e Lima. Attorney at Law. Bachelor in Law at Pontificia Universidade Catolica de São Paulo (PUC/SP). Specialist in Tax Management at FECAP/SP. Master’s in Law Student at Pontifícia Universidade Católica de São Paulo (PUC/SP).
 Other taxable events are presented of the Federal Constitutional but are not relevant for the present study.
|< Anterior||Próximo >|