Holding patrimonial: limites do planejamento tributário a partir dos princípios da legalidade e capacidade contributiva

Abstract

This study aimed to analyze the limits of Tax Planning as a way to tax savings especially focusing on the use of Equity Holding in the case of Income Tax and Succession Cause Mortis. He studied the formation of Equity Holding as Corporate innovated by Law 12,441/11, which entered the Individual Company Limited (EIRELI) liability to art. 44 of the Civil Code. The study was conducted by doctrinal, legal and jurisprudential research, addressing based on the dialectical method. The procedure methods, in turn, were the history, to investigate the evolution of the theory of tax planning in Brazil Holding training, against elision Standards and study on the form of legal entity (EIRELI). The work was divided into two chapters. In the first we met the concepts and historical aspects of Holding (EIRELI), Tax Planning and General Against Elision Standard, as well as the differentiation between tax avoidance, evasion and avoidance malpractice. Consideration was also the Tax Principles related, such as legality, Isonomy and Contributory capacity. In the second chapter, after an analysis of the revenue collection aspect, we tried to set the inheritance tax and income tax, from the studied principles, especially progressivity and Contributory capacity, and its relationship with the Tax Planning. Finally, it was found that the against elision standard provided for in the sole paragraph of art. 116 CTN search effect the principle of Contributory capacity and align it with that of legality, disregarding for tax purposes the effects of elision acts taxpayer regarded as unlawful. However, there is the matter of Article 116, § Unique, the CTN needs further legal regulation to give proper legitimacy to the acts of public administration. It also criticizes the use of tax maneuvers as the formation of Holding companies. Although the legal mechanism, it is observed that violates Contributory Capacity.