A norma geral antielisiva no sistema constitucional tributário brasileiro

Abstract

The purpose of this study was to check the constitutionality of the general antiavoidance law, in accordance with the current Brazilian constitutional system. For such, we examined the Federal Constitution of the Federative Republic of Brazil, promulgated on 10/5/1988, delimiting the proposed study, analyzing its norms, general principles and specific principles of the Tax Law. We assessed concepts pursuant to the incidence and construal of the norms, in special those that establish juridical presumptions and fictions, in order to identify the possible scope of a general anti-avoidance rule. Deepening the examination of the question related to tax avoidance, we defined some concepts from the main juridical institutes foreseen in the Brazilian legal system that involve the subject: tax avoidance and evasion, the simulation, the dissimulation, the indirect juridical business, the fraud of the law and the abuse of right. We will also examine juridical institutes arising from foreign legal systems, which were studied only as an example, as these are unenforceable in our system, such as the theory of economic interpretation and the abuse of form. Finally, we checked the jurisprudence in the judicial and administrative courts, related to the deconstruction of tax planning and to the application of the general anti-avoidance rule