O planejamento tributário e o propósito negocial sob a ótica do CARF

Abstract

The present research aims to analyze the applicability of the business purpose, as an element of validity of tax planning, in Brazilian legislation. The analysis was developed over the legality and legitimacy of this element, due to the lack of regulation and the indiscriminate use by the Administrative Authorities. Based on the in-depth study of tax planning and the business purpose, including demonstrating the insertion of this element in Brazilian Legislation, it was possible to build arguments that supported the critical analysis developed over administrative jurisprudence. The origin and limitations that prevent the application of the institute have been demonstrated and it has been proven that most decisions of The Board of Tax Appeals indiscriminately apply the business purpose as a validity requirement for legal acts and deals, being based solely on the Principle of Contributory Capacity. Finally, it was examined two important administrative judgments that waive the necessity to prove the business purpose to validate tax planning orchestrated by taxpayers.