Conflitos de qualificação na determinação da base de cálculo do imposto de renda: a pluralidade de conceitos no âmbito do direito privado e suas possíveis repercussões tributárias

Abstract

The Brazilian legislator has defined that the income tax base is determined based on accounting profit adjusted by additions and exclusions defined in tax legislation. From 1977 to 2007, the relationship between income taxation and accounting resulted in few controversies. This was due to the circumstantial proximity between the guiding principles of accounting science and the rules of income taxation. This scenario changed as of January 1, 2008, due to Law No. 11,638/2007, which determined the convergence of Brazilian accounting standards with the accounting rules dictated by the International Accounting Standards Board (IASB). These market-oriented rules broke the compatibility between accounting profit and its use as a starting point for calculating income tax. This divergence arises from the fact that international accounting is concerned with the quality of information present in financial statements, assuming its ability to estimate the present value of future results. For this reason, the new accounting is oriented towards the future (expectations), dissociating itself from the form of contracts entered into to pursue their economic essence. Therefore, it may even record the present effects of transactions that have not occurred precisely because of its predictive function. Therefore, accounting can even record the present effects of transactions that did not occur. Therefore, there is a structural divergence in relation to tax law, which taxes manifestations of wealth that definitively occur. Since Law No. 11,638/2007, many of the controversies arising from the change in the previously existing balance between taxation and accounting have been resolved. Provisional measures were issued on two occasions, followed by two important laws, both with the main objective of regulating the tax effects of the new accounting. In Law No. 12,973/2014, the legislator maintained accounting profit as the starting point for calculating the income tax calculation base, despite divergences. As in Italy, the legislator reinforced a relationship that seemed destined for separation. It is precisely this normative diploma that this dissertation focuses on. Unlike most studies developed so far, which have focused on a type of external prejudice between accounting and taxation, this dissertation aims to establish objective hermeneutic criteria to resolve potential differences in qualifications between Corporate Law and Civil Law. These are important questions, as different qualification criteria can be treated as Private Law, which makes the application of the rule contained in article 109 of the National Tax Code meaningless. In other words, through an analytical study of the qualification criteria adopted by accounting, it will be established when its use is compatible with taxation rules or when Civil Law should prevail due to its apparent greater legality. This work seeks to demonstrate when to choose (a) the greatest proximity between the income tax calculation basis and the corporate qualification of patrimonial facts; and (b) the prevalence of the form derived from Civil Law, as an expression of the will freely expressed by the parties in an economic transaction.