Planejamento fiscal e a inconstitucionalidade do parágrafo único do artigo 116 do CTN como norma geral antielisiva

Abstract

The present paper addresses the main questions related to the general anti-avoidence rule, represented in the sole paragraph of article 116 of the Brazilian Tax Code. This paper also discribes the concepts of tax avoidance and tax evasion, particularly the subtle difference existent between both institutes which settle on your legality. It also highlights the evolution of interpretation’s methods on the tax law, mainly the theoretical frameworks of the jurisprudence of concepts, the jurisprudence of interests and the jurisprudence of values and theirs contributions to improve the balance between the constitutional principles and the tax law. This paper investigates the tax planning rules, their repercussion in the brazilian’s legislation drawing a comparasion between brazilian and international tax planning provisions, based on common law and civil law sistems specially on the german, italian and american’s legislations. This paper than moves on to analyze the theories that justify the general anti-avoidance provision, which are the legal form’s abuse doctrine, the fraud’s law doctrine and the right’s abuse doctrine. The paper also discusses the principles of legality, typification, ability to pay, equality and free enterprise, comparing them to finally conclude the unconstitutionality of the general anti-avoidence rule on the Brazilian legal sistem, which is this paper’s focal point. In conclusion, it supports the provision’s unconstitutionality whose application harms the principles of legality, typification and separation of powers, besides the impossibility of the analogical application’s legislation in order to demand tax payment.