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- Title
Planejamento tributário e a norma cogente não tributária.
- Authors
Martins, Iágaro Jung
- Abstract
The tax planning is structured from legal business, ruled by non-tax applicable standards. The knowledge of these rules allows addiction identification by the interpreter (whether or not law pathology exists). The existence of a law pathology is a safe legal criteria used to identify an abusive tax planning. This conclusion was made possible from the instrumental research over the three stages of planning, didactically organized by Marco Aurélio Greco and how the knowledge of private law pathology is fundamental for tax planning demonstration, which should be based on the fact, striped from its attached legal qualifications, not only in regard of the analog application or economic reading, but in investigate the real background situation and the following occurrence of legal transactions which forms tax planning and also check if there is legitimate reasons for its occurrence, in other words, if business purposes exists. Throughout the study, eighteen tax planning scenarios were evaluated and systemized by the Administrative Council of Fiscal Appeals (ACFA) while the Normative Systems methodology was used. In the end, one may conclude that, in the second stage of tax planning, the Legal Science presents sufficient and secure evidences to be considered as non-abusive, the tax planning which is released from pathologies and when the extra taxation subject (business purpose) is validate to the establishment of the legal transaction, in those circumstances the taxable planning opposes to the tax authorities. However, it will not contest when any kind of pathology exist (simulation, abuse of rights, fraud against the law, v. g.), in such case, the launch of the business, the pledge to reclaim non-collected tax is protected by the article 149, paragraph VII of the legal pathology exists, prevailing of the sole paragraph of CTN's article 116, so the tax authorities considers the tax planning as abusive. The regulation of this provision made by CTN will take us to the third stage of Tax planning, or just issuing an Anti Tax Fraud General Rule, there will be a procedure allowing the Tax Authorities to interfere in tax planning, free from any legal pathology. In the third stage it will be up to the taxable person validates the existence of an extra taxation factor when executing a legal business and it could be considered as a valid tax planning.
- Subjects
TAX planning; LEGAL procedure; CIVIL law; TAX evasion; TAX research
- Publication
Cadernos de Finanças Públicas, 2012, Vol 12, p163
- ISSN
1806-8944
- Publication type
Article