O planejamento de negócios envolvendo tributos indiretos e os seus critérios especiais de resolução
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Data
2015-09-23
Orientador(res)
Bifano, Elidie Palma
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Resumo
Business planning with tax impacts is an issue that generates great theoretical and practical discussions. The theme increases in interest insofar as it abandons an essentially legalistic and formalistic view of what can be done to save on taxes, and it goes on to consider that other vices in the actions and business employed in the 'plan' should be reflected in the analysis of the intended tax purposes. In this scenario of genuine legal uncertainty, one of the main ways for private agents to assure themselves from tax effects (intended), resulting from the planning of their business, is the analysis of cases already tried by administrative or judicial authorities. However, almost all of the manifestations from judicial and administrative bodies for trial relate to transactions involving, basically, direct taxes, lacking the doctrine of specific remarks about cases of plans involving the economy of indirect taxes, defined as those that impact economically on the price of goods and services. Analyzing 'typical' business planning cases involving indirect taxes, one can notice some specific standards to be applied in judgment for the (dis)regard of targeted tax purposes. It was identified that, (i) in the plans that involve the creation of new businesses or new legal entities there is - except for simulation cases - almost a presumption of the existence of the negotiating substance, removing any possible judgments about the abuse of rights or fraud. Similarly, it was observed that, (ii) in the event of planning built with a view to the use of credits arising from non-cumulative situations, this - non-cumulative situation - should be chosen as one of the determining criteria for the resolution of the case study, especially in those situations where an entire plan is carried out to allow for the fruition of already-recorded receivables. Moreover, (iii) the principle of ability also deserves proper consideration in cases where the tax economy that is sought is related to indirect taxes, since it may occur that the gain obtained is passed on to consumers of goods or services. Finally, it seems possible to say that business planning with tax effects for the economy of indirect taxes deserves specific considerations that should be taken into account by law enforcers.
Descrição
A dissertação busca identificar a existência de critérios especiais de resolução para planejamentos tributários que envolvam tributos indiretos.