O planejamento tributário e a fraude à lei

Abstract

The debate on tax planning has always posed challenges to the legal doctrine in that it segregates fundamentally contrasting interests, as that of the tax authorities on one side, with their incessant job of collecting taxes, as opposed to that of the tax payers, on the other side, with their endless efforts to mitigate the tax burden on their acts and transactions. The wide range of issues arising from this murky zone of conflicting interests makes this study even more essential, by means of which, in tight short, we review the legal debate on tax planning, as well as the very important figures of tax evasion, tax avoidance and tax mitigation. We will draw a few considerations on the relevant tax constitutional principles, especially on those of legal security, constitutional division of powers, strict tax legality, tax typicity, ability to pay, and the equality and generality principles. The main theoretical doctrines on the interpretation of tax law will be considered, namely: the jurisprudence of concepts, the jurisprudence of interests, and the jurisprudence of values. In light of the latter, the abuse of rights figure will be addressed, especially in view of the legal debate about whether or not it is applicable under Brazilian tax law. Special attention will be given to the figure of fraud of the (tax) law, particularly under Brazilian and Spanish tax doctrines, since the latter has much dedicated to that matter. We enter the controversial world of the sole paragraph of Article 116 of the National Tax Code and its related issues, among which we will review whether it may be deemed a general anti-avoidance rule and, if so, its possible applicability in Brazil, whether such rule aims at authorizing the use of analogy for tax purposes, and, finally, the Government s attempt to regulate said rule by means of the Provisional Measure No. 66/2002