Elusão e os limites do planejamento tributário: entre o direito fundamental de liberdade fiscal e o dever fundamental de pagar tributos

Abstract

This thesis aims to analyze the limits of tax planning and the fight against tax elusion in the Brazilian Legal System, considering the existing tensions between the fundamental right of freedom and the fundamental duty to pay taxes, both enshrined in the Federal Constitution (1988). In 2001, the Supplementary Law nº 104 was approved, adding a sole paragraph to article 116 of the CTN, which allows the Administration to disregard legal acts and transactions carried out with the purpose of concealing the occurrence of the taxable event or the nature of the constituent elements of the tax obligation, observing the procedures to be established by law. Since the publication of the statutory provision, numerous controversies have arisen in doctrine and jurisprudence regarding its legal nature, its constitutionality, its field of application and its effectiveness, so that the limits of tax planning in Brazilian Law are still doubtful, leading to serious legal uncertainty. It is argued in this thesis that the sole paragraph of article 116 of the CTN consists of a general antiavoidance rule – created by the legislator to promote the fundamental duty to pay taxes – that enshrined the figure of fraud to the tax law as a reaction matrix to abusive tax planning (based on tax elusion). It is also argued that the statutory provision establishes restrictions – compatible with the Constitution – to the exercise of the fundamental right of freedom by prohibiting the carrying out of operations without a legitimate legal cause, in indirect violations of the law. In this sense, it is understood that the Administration will be authorized to disregard, only after the regulation of the sole paragraph of article 116 of the CTN, legal acts and transactions that prove to be dissimulatory (elusive), thus defined those ordained with the exclusive purpose of reducing, suppressing or defering the payment of taxes, in order to circumvent the application of mandatory tax rules. The work ends with a critical and careful analysis of Administrative Council of Tax Appeals (CARF) and of Brazilian Courts precedents, outlining some projections about the future of abusive tax planning control and the fight against tax elusion in Brazil.