Liberdade econômica e planejamento tributário: entre legalidade, moral tributária e ordem econômica

Abstract

The present work deals with the intended tax savings through the realization of tax planning. It seeks to analyze the theoretical and economic foundations related to tax planning, its purpose, the existence of legal support in the national system for its realization, its limits, how the competent bodies have analyzed the subject, and whether there is a constitutional and legal foundation for such acts are disregarded by the State. It starts with the contribution of the Economic Analysis of Law, the premise of the relationship between Law and Economics and how the legal norms propel or induce the behavior of the economic agent, who, conceived as rational, will choose to practice acts that imply greater efficiency in a cost-effective relationship. It is also adopted as a premise that the Constitutional Economic Order is founded on principles and values such as free enterprise and free competition, and ensures the exercise of property and self-organization rights, preserving the autonomy of economic agents in the search for greater efficiency, with cost reduction, and the consequent maximization of results. Therefore, it starts from the theoretical framework of the relationship between the economic and legal systems, reinforced by the values enshrined in the Constitutional Economic Order and by the general principles of economic activity. The role of the State in the economic domain and the reflexes of its performance are analyzed, notably through legal norms and fiscal policies, in the market. The fiscal economy will be conceptualized through tax planning, analyzed, in turn, in the light of the relationship between taxation, freedom and fiscal ethics, in order to conclude about its morality. The matter will also be analyzed in terms of concepts such as good faith and legal certainty. A contrast will be made between the existence of the duty to pay taxes and the tax savings. Finally, the limits to tax planning will be presented, analyzing the suitability of principles and values such as contributory capacity, tax equality and solidarity to prevent tax planning, and the use of different concepts on the subject and legal institutes such as abuse of law and business purpose, in the light of doctrinal contributions, national legislation and the pronouncement of administrative jurisprudence. The results found point to taxation as a mechanism originating from legal norms that generate distorting effects on the economy, representing real transaction costs, inducing economic agents to seek mechanisms to increase their efficiency by reducing the tax burden. They also point to the existence of a legal basis, notably in property and freedom rights and in the principles of free initiative and free competition, to justify the self-organization of economic agents in the search for the reduction of the tax burden. In addition, they point to doctrinal and jurisprudential uncertainty about what tax planning and tax evasion may be, and to the inadequacy of the use of criteria such as abuse of rights and business purpose to disregard legal business. The conclusion is that tax planning is fully adapted to the Brazilian legal system and the impossibility of invalidating legal transactions based exclusively on the tax economy.