Legalidade, igualdade e planejamento tributário – fundamentos e limites à elisão tributária no sistema constitucional brasileiro

Abstract

This research works deals with the institute of tax avoidance and its constitutional boundaries, seen through the prism of the rights of freedom, expressed in the principles of legality, exercise of economic activity and the right of property, and rights relating to social solidarity, contained in the principles of equality and ability to contribute. There was initially established a theoretical model defining the concepts of law text and their content and described the process for the construction of interpretive sense of legal rules of the principles studied. It also investigated the institute of tax avoidance and its reflections in the tax system. The technique in tax avoidance planning works when the taxpayer conducts preceding the facts described in a law text or act different not predicted as assumption of the standard tax incidence. Two are theories to position itself on the tax avoidance, arguing that the first would be the tax system governed by typical characteristics closed, in which the chances of impact would be numbered thoroughly and any act not specifically envisaged would be illegal, and that will be founded on the principles of legality, free exercise of economic activity and the right to property, while the second maintains that through interpretive process of construction standards in which they take values as equality, social solidarity and ability to exist limits closer to the realization of tax avoidance. Based on these assumptions then move to investigate the values underlying the tax avoidance exposed in the first theory, to see if this is the real sense contained in the constitutional text and figures related to the principles of equality and ability to contribute, and in which way this idea of social solidarity will downsize the rights of freedom. It is the end that the existence of this duty of the individual to the collective will downsize property, as well as a demarcation to seal formed in tax fraud, simulation and abuse of rights in the system.