Legalidade da desconsideração do planejamento tributário pelo CARF em face das teorias do abuso e do propósito negocial
This paper aims to analyze the possibility of using the business purpose and the absence of irregularities of the legal contracts as validity requirements for tax planning, which has already been used by the Administrative Council of Tax Appeals to disregard the legal business of the taxpayer. In th...
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| Formato: | bachelorThesis |
| Idioma: | pt_BR |
| Publicado em: |
Universidade Federal do Rio Grande do Norte
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| Endereço do item: | https://repositorio.ufrn.br/handle/123456789/51775 |
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| Resumo: | This paper aims to analyze the possibility of using the business purpose and the absence of irregularities of the legal contracts as validity requirements for tax planning, which has already been used by the Administrative Council of Tax Appeals to disregard the legal business of the taxpayer. In this sense, it seeks to study the concepts which are necessary to understand tax planning, such as elision, elusion and evasion, as well as its meanings and concepts. It uses the hypothetical-deductive method, starting from the hypothesis that listing the business purpose and theories that deal with legal contracts irregularities as a requirement for tax planning would be a noncompliance with tax law principle. It sediments the research through the bibliographic methodological procedure, being a exploratory research, basic and qualitative. For that, it studies the tax planning and the tax evasion, its theoretical bases, limits, conceptualization and legal nature. It also analyzes the insertion of the single paragraph of article 116 of the National Tax Code, through Complementary Law 104/2001, given the justification that this device legitimizes the use of theories of the defect of the legal business and the business purpose as limits to the exercise of the taxpayer's right to plan itself. It is verified that as long as there is no regulation of said device, the rule that is extracted from it will be a mere reiteration of what is exposed in art. 149, VII, of the National Tax Code, in a more restricted form. Looking all the notes made, it can be concluded that the business purpose theory, the theory of abuse of the law, the abuse of forms or of fraud to the law, individually, could not be used to disregard tax planning. However, these aspects can be used as evidence and, therefore, in the assessment of the judge by the finding or not of abusiveness in the planning. It punctuates elements that it intends to meet the need as objective criteria to clarify the boundaries between licit tax planning and abusive tax planning. |
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