A desconsideração de negócios jurídicos com base na lei geral antielisão

Abstract

The addition of a single paragraph to article 116 of the National Tax Code created the so­called general anti­tax law (LGA). By its provisions, the fiscal authority may disregard acts and legal transactions practiced for the purpose of concealing the occurrence of the taxable event or the nature of the constituent elements of the tax obligation. Many doubts about this innovation exists: are there limits of action for the Federal Revenue? Does the absence of its regulation by ordinary law preclude its application right away? Is this law really against elision or fraud? Despite these controversial points, the Federal Revenue has been applying it, not under the total consent of the taxpayers, who make their incomings arrive until the Tax Appeals Board (CARF). In view of the foregoing, this work has the purpose of analyzing whether the general anti­avoidance law is already being accepted in the disregard of legal business that are brought to this judging body. For this purpose, it identifies the history of the general anti­tax law in the Brazilian legal system and defines and differentiates the institutes from tax evasion and avoidance. The method of approach chosen is the dialectical one and as method of procedure the history, the comparative and the case study were selected. The conclusion is that the LGA is recognized by CARF, but its application is still cautious and based on strong evidence that there was concealment, abuse of form or law in the conduct of institutions that had their business dealings disregarded.