Revista de Direito Setorial e Regulatório (Oct 2020)
O combate à sonegação do ICMS à luz da economia comportamental e da regulação responsiva
Abstract
Purpose – This article aims to analyze cases in which the Public Administration applied principles of behavioral economics and responsive regulation to policies that fight tax evasion. Methodology/approach/design – The article studies public policies designed to fight fraud that uses behavioral economics in the states of Pernambuco, São Paulo, and the Federal District based on incentives for the proper payment of taxes. These specific cases were chosen because they are the pioneers within Brazilian states and, consequently, more empirical data was gathered on them. To test responsive regulation in state programs against fiscal fraud, this article analyzes programs from the states of Espirito Santo and Sao Paulo. These two cases are the only ones that apply responsive regulation to the fight against ICMS fraud. Findings – Policies that use electronic invoices as a method of control rely upon behavioral economics and demonstrate positive results in increasing tax collection. In a similar manner, “Nos Conformes” (Sao Paulo) and the Fiscal Cooperation Project (ES) apply enforced self-regulation and were successful in increasing state revenue. Regulation that is not based purely on the criminalization of tax evasion is efficient because it is able to produce positive results without the need for large investments from the State. Practical implications – Responsive regulation and behavioral economics do not endorse the holding of the Supreme Court (RHC 163.334) because both theories are not purely based on harsh sanctions, such as criminalization of ICMS evasion. It is important to include other incentives when regulating taxpayers. Originality/value – This research analyses how behavioral economics and responsive regulation relate to one another when applied to the enforcement of Tax Law. The comparison between the two theories has never been done. Furthermore, the state policies that are analyzed demonstrate an unprecedented application of behavioral economics and responsive regulation.
