Tributação global mínima, renda e responsabilidade: uma análise da compatibilidade das GloBE Rules com a Constituição Federal de 1988

Abstract

The GloBE Rules are a proposal by the OECD to impose a minimum global tax rate of 15 per cent on the income of large multinational groups. To this end, they use two mechanisms: the Income Inclusion Rule, whereby a complementary tax is levied by the states where the group's controlling companies are located, giving preference to those located at a "higher" level in the corporate chain; and the Undertaxed Profit Rule, by which this tax is levied by any state where a company belonging to the group is located, regardless of a specific link, such as a control relationship. Against this background, this paper aims to examine the compatibility of these rules with the concept of income enshrined in the 1988 Federal Constitution. To this end, it carries out a detailed analysis of the rules in question, seeking to characterise them in terms of their consideration of the economic group, their preponderant purpose and the presence of an anti-taxation purpose. It then examines the criteria for domestic rules to be considered equivalent to the GloBE Rules, and seeks to ascertain whether there are any rules in the Brazilian legal system that can be categorised as such. In addition, this work scrutinises the discussions on concepts and types, especially with regard to the rules on the distribution of competence, in order to arrive at some irrevocable notes of the constitutional concept of income. These notes are then contrasted with the GloBE Rules, in the light of both the materiality affected by them and the taxable person elected to pay the complementary tax. Finally, the conclusion is reached that, although a group taxation regime is compatible with the constitutional text, the GloBE Rules are not, as they prevent the global consolidation of group results and attribute liability for paying the tax to entities that are unable to reimburse themselves for the burden borne.