A legalidade e a segurança jurídica: análise do planejamento tributário após a criação da norma geral inserida pela LC 104/01

Abstract

The presente study analyses the aspects of tax planning in Brazilian Tax Law, in the syntatic, semantic and pragmatic planes. Initially we seek the differentiation between elision, elusion and fiscal evasion. For a best understanding of evasion and elusory conducts the dissimulate sign is isolated and a syntatic analysis of the relation of concealment with others signs signifying evasion or elusion is made. For this a dicotomy is taken between public and private law, since the Tax Law uses concepts from private ambit to atribute the tax effects. In this área tax legality and juridic security limit fiscal planning; on the other hand the contributive capacity and social solidarity base the taxation applicability of fiscal justice. The crucial point is the creation of the general norm with Complementary Law n.104 of 2001. Wich started to base the disregard of acts or juridic transactions, not only evasive but also elusive, besides measures that have been implemented unsuccessfully and the Beps Plan that influences all countries adherents to the Plan, to carry out a system of cooperation no more competition. In the current scenario of Brazilian doctrine a study os negociation purpose is carried out in view its applicability in Brazil and the judgement of the Administrative Council of Fiscal Appeals of the year 2017.