Os limites do planejamento tributário à luz da norma geral antiabuso no Direito Tributário Brasileiro

Abstract

Brazil faces a constant war regarding the debate on tax collection, which makes the relationship between the taxpayer and the Brazilian State, to say the least, conflicting. As a result, tax planning has become an essential instrument for the survival of small and large companies in the country. The legal term used to refer to tax planning is tax avoidance, through which, through legal means, taxpayers and companies attempt to reduce the tax burden in a lawful manner, taking advantage of loopholes and tax incentives provided for in legislation. As a result of the Federal Supreme Court's decision in Direct Unconstitutionality Action 2446, in which the sole paragraph of article 116 of the National Tax Code was judged constitutional, the possibility of carrying out tax planning began to be questioned. This uncertainty was due to the lack of definition regarding the possible limits for the continuity of the practice of avoidance. Since, this excerpt from tax legislation defined that the administrative authority can decide what is or is not violating the regulations that govern the taxpayer's obligations. As a result, the limits of the State's administrative supervision were no longer defined, which made it difficult to analyze what is or is not a tax irregularity and created a legal gap in the possibility of carrying out tax planning. Therefore, it is essential to know the position that the taxpayer must take towards taxation, as well as what it represents and how they should behave towards it, depending on the position in which they find themselves. This is because the main objective of tax planning is precisely to minimize the taxes paid by the company, without violating tax laws and regulations. Using the inductive method, different historical, social and legislative aspects were analyzed, in search of a precise and appropriate conclusion. As for procedural methods, monographic and comparative methods were used, aiming to verify the discrepancies between assumptions adopted in the STF decision that recognized the constitutionality of the sole paragraph of article 116 of the National Tax Code and the possibility of carrying out tax planning without any a legal violation of Brazilian tax legislation. It was concluded that the contradictions in Brazilian legislation, together with the decision in ADI 2446, added to the State's interest in raising resources, make it difficult for taxpayers to exercise tax avoidance. Therefore, in order to define the limits of tax planning and the practice of avoidance, it must be taken into account that every taxpayer has the right to structure his business in the way that best suits him, seeking to reduce the costs of his enterprise. including taxes, and there is no irregularity in its practice, if carried out within legal limits.