THE DUTY OF CONSISTENCY FOR THE SELECTIVE TAX

Abstract

This article examines the Selective Tax (Imposto Seletivo, IS), created by Constitutional Amendment No. 132/2023 (article 153, VIII, of the Brazilian Federal Constitution) and regulated by Complementary Law No. 214/2025, from the perspective of the duty of coherence that must guide the selection of the goods and services subject to it. The research problem is whether the legislator, when choosing the items deemed harmful to health or to the environment, respected the material limits set by the Constitution, or whether the extrafiscal nature of the tax grants it broad discretion. The general objective is to demonstrate that the IS competence rule imposes a duty of coherence on the legislator, grounded on the specificity and selectivity of the tax, on the constitutional protection of health and the environment, and on the principles of equality and simplicity. The study adopts a qualitative and zetetic approach, with a deductive method and bibliographic and documentary research, covering legal scholarship, legislation, legislative records and official data. The analysis reveals inconsistencies in Complementary Law No. 214/2025, such as the exclusion of trucks, the equal treatment of combustion and electric vehicles, the narrow taxation of sugary drinks and of certain mineral goods, the inclusion of fantasy sports alongside betting, and the unjustified omission of recognizably harmful items. It concludes that the legitimacy of the IS depends on legislative choices supported by technical evidence; otherwise, it risks deviating from its purpose and being declared unconstitutional.