Planejamento e Direito Tributário: reflexões à luz da distribuição democrática de competências, da justiça e da segurança jurídica

Abstract

This work proposes to investigate the planning of fiscal activity (by the State) and the fiscal cost of economic activities (by the taxpayers). It is intended to investigate the criteria compatible with the Brazilian Constitutional System in order to differentiate tax elision and tax evasion. This work also aims at delimitating the requirements for the admittance of disregard for inspection in cases of acts and businesses done by the taxpayer that aim at reducing his/her tax burden. The research is developed considering Niklas Luhmanns Theory of the Systems, The Planning Theory of Law and the concept of economy of trust, developed by S.J. Shapiro. The thesis is developed considering the premise that the juridical system is an autopoietic system, operationally closed, but cognitively open. That is, a system that create itself, operate and transform itself by internal operations, without the interference of external factors, but that is adapted to society by structural engagements, enabling the collection of data in the environment and the improvement of the contents of the Law. The correlation between the conception of Law as a plan and the individual right to plan ones actions and lives, as long as in conformity with the shared social plan, is also established. The interpretive metatheory developed by Shapiro and centered on the idea of economy of trust is complemented in this thesis through the democratic and equality principles. The theory is invoked to confirm the impossibility, in Brazilian Law, to attribute a high degree of discretion in tax law to the interpreters of the system, especially when they extend the incidence of taxes. This is done in order not to corrupt the management of trust outlined in the constitutional text. In this thesis there is a study of the most relevant constitutional principles related to the rule of law and justice that are applied in tax issues. I argue that taxpayers guaranties cannot be weighed in the name of justice. In conclusion, the taxpayers acts can only be considered illegitimate in case of law violation, simulation, fraud to the law or abuse of right (in these two last cases only specifically concerning the law that governs the material relation, not tax law). The criteria inspired in economy were imported by alien systems, for the investigation of legitimacy in tax planning, business purposes investigation being an example, including the premise that substance is considered over form and the control of structured operations are pointed as criteria to analyze and to interpret the facts (included in identity simulation), but not as sufficient criteria to extend the incidence of taxes. In the final parts of this thesis, precedents selected from the two most important Brazilian Courts (The Supreme Court and the Superior Court) and the Federal Administrative Court are analyzed. This analysis intends to identify the treatment that these courts give to the questions related with tax planning.