It is a fundamental guideline of the National Tax Code that taxes are not intended to punish any unlawful act:

"Art. 3º Tributo is any payment of the compulsory pecuniary, in currency or the value of which can be expressed therein, which does not constitute a penalty for an unlawful act, instituted by law and charged through fully linked administrative activity."

Taxes, therefore, cannot serve as an instrument to penalize those who break the laws. Charges, as a kind of tax, are included in this rule.

Thus, it surprised the recent decision of the plenary of the Supreme Court (STF) in direct actions of unconstitutionality ADI 4,785, ADI 4,786 and ADI 4,787.

In this brief article, we will deal only with the possibility of justifying, based on incidents that occurred in a given economic segment, the collection of charges without equivalence with the cost (even if estimated/approximated) of the service to be funded.

This is because, no more than three years ago, the same plenary of the Supreme Court ruled on the impossibility of the charges for the police power being charged at levels higher than the cost of the state service to be remunerated.

At that time, when we had the opportunity to represent the entity author of the action, more specifically in the judgment of the ADI 6,211/AP, the plenary of the Supreme Court ruled that the collection arising from the charges by the police power cannot be disconnected from the cost of state activity to be funded.

About this trial, the very website of the Supreme Court reported:

"The Supreme Federal Court (STF) declared unconstitutional provisions of the state Law 2.388/2018 of Amapá, which instituted a fee on exploitation activity and use of water resources (TFRH). By a majority of votes, the Plenary, in the session of Wednesday (4), upheld the Direct Action of Unconstitutionality (ADI) 6211, filed by the Brazilian Association of Independent Producers of Electric Energy.

Consideration

The vote of the rapporteur, Minister Marco Aurelio, prevailed in the trial. According to him, the rate, unlike the tax, has a counter-provision, that is, it must be tied to the effective or potential execution of a specific public service or, as in this case, to the regular exercise of police power. On the basis of calculating the rate, it should therefore be observed a correlation between costs and benefits, in compliance with the principle of proportionality.

For the minister, in the case of Amapá, where the rate is calculated according to the volume of water resources used by the taxpayer, the data show the lack of proportionality between the cost of state activity that justifies the rate and the amount to be spent by individuals for the benefit of the public entity. The amount collected, he said, is ten times the annual budget of the state's environment management secretariat. 'Nothing justifies a fee whose total collection exceeds the cost of state activity that allows it to exist,' he said.

Collecting character

The rapporteur noted that the very wording of the law demonstrates the eminently collecting nature of the tax instituted, by providing for the contribution of the proceeds of the collection for the promotion of municipal initiatives related to the state policy of water resources and to increase the so-called water resources fund. 'It was admitted that a substantial portion of the collected is not even directed to the cost of expenses related to the control and supervision of exploration activities to the use of water resources,' he said.

Minister Edson Fachin was partially defeated, who considered articles 2, 3 and 5 of the standard constitutional, which, in his view, only provide for the exercise of police power and explain their form of exercise or performance."

Nothing more appropriate and settled, since, unlike the taxes that are the primary source for the maintenance of state entities, the charges are signage/referable/counter-paymental taxes, which require that their collection is intended to cover the cost of the service to be funded.

Given the relevance, we transcribe excerpts from some of the votes cast in the ADI 6,211/AP trial:

• Excerpts from the vote given by Minister Marco Aurélio Mello:

"There is different understanding as to what is alleged in the first piece regarding the constitutional hygiene of the attacked act in the material sense, taking into account the principle of proportionality, which translates into the verification of the appropriate equivalence between the required value of the taxpayer and the costs alusing the exercise of police power to justify the imposition of the tax.

Pay attention to the provisions of Article 145, item II, of the Federal Constitution, to reveal the notion of fee, the requirement of which is guided by the principle of retributivity.

(...)

It is stated that the fee has a counterproductive and sinalagmatic character: by tied to the effective or potential execution of a specific and divisible public service, or, as is the case, to the regular exercise of police power, the value of the tax must reflect, within the limits of the reasonable, the cost of the state activity from which it takes place. According to Hugo de Brito Machado, 'nothing justifies a fee whose total collection in a given period exceeds the cost of state activity that allows him to exist', it should be observed, in determining the basis of calculation, 'even if by approximation and with a certain margin of agency', correlation between costs and benefits, under penalty of having mischaracterized the nature of the tax (MACHADO,  Hugo de Brito. Tax Law Course. São Paulo: Malheiros, 2018. p. 443)

In view of the need to keep, in the definition of the amounts to be charged, intimate relationship with the fulfillment of the activity that gives it opportunity, verified difficulty or even impossibility of determining precisely the cost alusive to state activity, it is feasible for the Public Administration to establish an approximate amount, proportional, which is the adoption of the basis of own calculation of tax,  in the form of Article 145, § 2, of the Major Law.

There is almost ten times the budget annually allocated to the Secretary of State for the Environment, the body entrusted, in the form of Article 3 of the Diploma wholesale, to 'plan, organize, direct, coordinate, implement, control and evaluate sectoral actions related to the use of water resources' and to 'record, control and monitor the exploitation and use of water resources'. From the analysis of the budget pieces for the years 2018 and 2019, the resources allocated to the Secretariat comprised, respectively, 8.3 million and 10.5 million reais – reaching the average of only 9.4 million reais annually."

• Excerpt from the vote given by Minister Luis Roberto Barroso:

"Here, what is verified is that the claim of collection with this fee, as in the case of Pará, exceeds the budget of several Secretariats of State. The disproportionality seems evident. It is not that it exceeds the budget of the Secretariat in charge of supervision, it exceeds the budget of several departments added together. I think this mischaracterizes the rate character as a linked tax proportional to the activity performed."

• Excerpt from the vote given by Minister Rosa Weber:

"Furthermore, the financial data estimated by the author and not challenged by the Governor or the State Legislative Assembly seem to indicate that there is no correlation between the value of the fee and the cost of the police power to justify its imposition. There is no need for there to be an exact correspondence in the fees with the cost of the service provided or made available to the taxpayer or the police power exercised, but minimal proportionality and reasonableness are necessary, and no gifts are made.

• Excerpt from the vote delivered by Minister Luiz Fux:

"Mr President, I say that there is no revelation of equivalence between the costs of state activity and the taxpayer's ability to pay. This parameter used effectively generated a confiscatory effect."

• Excerpts from the vote given by Minister Ricardo Lewandowski:

"Once the question of jurisdiction is overcome, I recall that the fee, as a counter-provision to an activity of the Public Power, may not exceed the reasonable equivalence ratio that must permeate the actual cost of state action and the value that the State may require of each taxpayer, considered, for that purpose, the relevant elements to the rates and calculation basis set by law. In other words, if the quantification of the rate exceeds the cost of the service made available to the taxpayer, thus constituting a situation of excessive costlyness, it will be demonstrated, in my view, offence to the fundamental prohibitive clause of non-confiscation, provided for in Art. 150, IV, of the CF/88:

(...)

The technical context reveals, therefore, disproportion and lack of correlation (referibility) between the facts generating the tax, the amounts to be collected and the cost of the inspection services provided by SEMA (calculated according to the volume of production, in accordance with article 6, of the contested legislation), so that, in the dimension of the cost/benefit, applicable to the fees,  violation of the principle of contributory capacity (Art. 145, § 2, CF/88) is also envisaged."

• Excerpt from the vote of Minister Dias Toffoli:

"Although the law may avail itself of the volume of water resources used to establish the value of THE TFRH – because, in the case, the larger this volume, the greater the exercise of the supervisory power by the Public Administration – it has to respect proportionality and reasonableness. In this sense, the amount actually charged under the fee cannot be strayed from the cost of state activity that is sought to pay."

It is out of doubt that it would be virtually impossible to have accuracy in the parity between the cost of the service to be funded and the amount to be collected with the charge.

This practical difficulty, however, cannot serve as a justification to allow the lack of equivalence – even if reasonably approximate – between the amount collected with the charge and the cost of state activity to be remunerated, under penalty of turning it into a true tax.

It happens that, although everything that has been commented on above reflects the decision of the Plenary of the Supreme Court on the charges for the police power, it seems, something caused some Justices of the Supreme Court to radically change their minds.

In the support of the votes cast by the Justices in the trial of the recent ADI 4,785, ADI 4,786 and ADI 4,787, with the exception of the Attorney General of the Republic, who expressly said to have changed their minds on the subject, the Justices who voted for the possibility of the charges for police power exceed the cost of the state service to be remunerated did not clear they made the reason for the change of understanding.

Apparently, one of the determining factors for Justices to validate the collection of charges on trial in those three direct actions of unconstitutionality was the occurrence of environmental incidents.

This can be drawn from the synthesis of the votes verbalized in the plenary session of 01/08/2022 – the judgment has not yet been formalized – especially Justices Edson Fachin, Luiz Fux and Carmen Lucia.

The Justices of the Supreme Court relied on the occurrence of environmental incidents to justify the collection of charges by the police power at strange levels and far from the cost of state service to be funded.

It happens that, as posted in Article 3 of the National Tax Code, tax is not the appropriate legal instrument for sanctioning any unlawful act.

From the judgment of ADI 4.785, ADI 4.786 and ADI 4.787 then the question arises: what exactly is the understanding of the plenary of the Supreme Court on the possibility of the charges for the police power being charged at higher levels – and sometimes even much higher – at the estimated cost of the public service to be remunerated?

With the jurisprudential scenario we have today, the answer to this question is unclear. There is great uncertainty for the applicators of the right on what is, after all, the understanding of the plenary of the Supreme Court in relation to the subject.

If you've ever considered it, for example, in ADI 6,211/AP, the unconstitutional charge for supplanting by more than ten times the total amount of the annual budget of the state entity that would carry out the police power funded by the fee, now, in ADI 4,785, ADI 4,786 and ADI 4,787, understood that there would be no harm in which the charges were charged in amounts significantly higher than the cost of the service to be cost.

Several possible questions emerge:

• Did the Justices of the Supreme Court understand that only mining charges could be collected at higher levels than the cost of the inspection activity due to the incidents that occurred?
• Did Justices consider the equivalence between the amount collected from the charges for the police power and the cost of the public service to be remunerated as an insurmountable constitutional beacon?
• How and what can be done so that other states and the various municipalities do not go through similar legislation so as to create charges with the same feature, to the point of making the constitutional tax system even more conflictive?
• Is the difference between the judgment of ADI 4,785, ADI 4,786 and ADI 4,787 and previous judgments on police charges, is there a probative question of the lack of equivalence between the cost of state service and the amount to be collected?

Questions like these urgently need answers from the plenary of the Supreme Court. It is expected, therefore, that Justices will re-consider the issue, whether in the context of a motion to clarify decision to be opposed in these three direct actions of unconstitutionality or in a forthcoming seat on the subject, because, worse than the sudden change of jurisprudential orientation of the maximum court of a country, is to leave the jurisdictions to the taste of doubt.

After all, all that is sought with direct actions of unconstitutionality is legal certainty to know the ratio decidendi plenary of the Supreme Court on the subject in judgment.