A (in)constitucionalidade do parágrafo único do artigo 116 do CTN e seus desdobramentos no planejamento tributário

Abstract

The present work seeks to analyze the impacts of the paragraph one of Article 116 of the National Tax Code, both in the legal aspect, more abstract, and in the social sphere, analyzing its consequences in concrete cases of tax planning. The main objective of the work is to analyze whether or not the paragraph one of article 116 of the National Tax Code (CTN) is constitutional and investigate its impacts on the tax planning of Brazilian taxpayers, focusing on legal interpretation, judicial decisions and strategies adopted by taxpayers facing this issue. To achieve this goal, an investigation will be carried out into the legal and doctrinal foundations behind the interpretation of the anti-avoidance rule, highlighting arguments both in favor and against its constitutionality. In addition, a detailed analysis will be made of Direct Action of Unconstitutionality 2446 and analysis of some administrative decisions of the Administrative Council of Tax Appeals that address the application and interpretation of the paragraph one of article 116 of the CTN and that deal with tax planning situations, seeking to identify decision-making patterns and divergences regarding the application of the standard. Finally, the practical effects of the interpretation of the sole paragraph of article 116 of the CTN on taxpayers' tax planning will also be examined, including strategies adopted to mitigate tax risks and possible impacts on taxpayers' legal certainty and economic efficiency. To achieve these objectives, the methodology used was a qualitative approach to the issue, using the bibliographic procedure. In search of producing more knowledge on the topic, enriching the debate, descriptive theoretical research aims to address the greatest number of possible aspects to be taken into consideration when analyzing the topic. The outcome of the work is the understanding that the general anti-avoidance rule is unconstitutional, in convergence with the minority understanding of the Federal Supreme Court. As a result, it is understood that Brazilian taxpayers face a scenario of legal uncertainty when exercising their right to tax planning, a situation that has not been resolved, nor even alleviated in the face of the declaration of constitutionality of the rule that allows the administrative authority to disregard certain acts carried out by the taxpayer, according to the minority understanding of the Federal Supreme Court in Direct Action of Unconstitutionality 2446.