Planejamento Tributário e os Direitos Fundamentais do Contribuinte: os limites constitucionais na gestão de tributos e na atuação fiscal

Abstract

This work has as scope the analysis of the normative limits in the exercise of the tax planning in front of the constitutional rights and guarantees of the taxpayer, since, due to the absence of regulation of the subject in the Brazilian legal system, the interpreter mistakenly starts using legal criteria of the current legislation, based on foreign models in the fight against tax evasion. In this sense, it is proposed to face the concepts of elision, evasion and elusion, in order to delimit its semantic contents and establish the factors in the determination of the legally licit or illicit in the accomplishment of the tax planning before the positive law. In order to do so, emphasis is placed on the fundamental rights of the taxpayer vis-à-vis the constitutional legal rules governing tax activity, since the principle of contributory capacity and fiscal justice are adopted as legal foundations that support the expansion of state supervisory power and legitimacy in disregarding the legal transactions carried out by the taxpayer, which, however, should be strictly adhered to the values of legality and legal certainty, under penalty of subverting the tax constitutional system itself.