Elusão fiscal e planejamento tributário abusivo: o critério da autoridade administrativa para a desconsideração de atos ou negócios jurídicos prevista no Art. 116, parágrafo único do Código Tributário Nacional

Abstract

This monography aims to investigate the different forms of interpretation of the general anti-avoidance rule of art. 116, sole paragraph of the National Tax Code, which gives the tax authority the task of disregarding certain acts or businesses practiced within the scope of tax planning. Having as theoretical framework the neoconstitutionalist propositions and making use of analytical-descriptive, inductive and critical methodologies, this work, through bibliographical, legislative, jurisprudential and doctrinal review, seeks to understand the main criteria used in disregard and its conformity with the constitutional order current Brazilian law. Therefore, the work starts from the study of the phenomena of tax evasion, tax avoidance and abusive tax avoidance, the practice of tax planning, the related civil concepts, the position of the Federal Supreme Court on the subject and the doctrinal reflections on the anti-avoidance tax rule under discussion. The results of this monograph are in the sense that abusive tax avoidance is characterized as an instrument of tax saving via the artificiality of legal acts and transactions; that the discussion about the enforceability of fiscal planning is more practical than dogmatic; that the rule in question is constitutional; that the enactment of a law that regulates the general anti-avoidance rule is an indispensable measure; and that the verification of the substance of the act or legal transaction is the most appropriate criterion for interpreting art. 116, sole paragraph of the National Tax Code..