O direito ao planejamento tributário como decorrência do direito ao livre exercício de qualquer atividade econômica

Abstract

The right to tax planning is seen from the perspective of tax law but that did not stop his observation about the inter-relationship with the Accounting and Economics. It has been seen general considerations on taxation, notably on General Theory of State and Public Finance in order to seek how is the relationship between state and taxpayer. The Brazilian tax burden and the tax bases were also analyzed where we noticed the strong presence of taxation on consumption and production. The structure of the tax law was studied, seeing if its composition rules and principles. They were seen doctrinal positions on the hypothesis of incidence and perceived the importance of considering the legal hierarchy. Tax planning and their species are explained without neglecting the elusive figures. The tax illegal and figures that orbit around it were also seen. It was found that before our order, only the simulation, fraud and tax evasion may be invoked as sufficient to disregard elements of acts or legal transactions. The theory of economic interpretation of the taxable event is not accepted in our legal system. Despite the non-regulation of antielisive general rule, the taxman comes disregarding acts and supposedly unlawful legal transactions. It was the importance of evidence in tax planning The fundamental rights of the taxpayer were decisive in the continued perception of tax consciousness borne by taxpayers. Tax planning as a right is legally supported in the Constitution and CTN. They were seen examples of abusive tax planning. Then they were made real case studies, where the administrative and judicial trial were analyzed and made considerations about the same. Finally, it was concluded that the taxpayer is entitled to a legitimate tax planning, supported by principles and rules inserts the Brazilian legal system.