Post by xyz3600 on Feb 25, 2024 3:22:10 GMT -5
In a lecture at the last Tax Law Congress organized by the Brazilian Association of Financial Law (ABDF), Ricardo Mariz de Oliveira set the tone of his speech by stating: “It is not possible to discuss Tax Law without knowing Private Law. And it is impossible to do tax planning without knowing Civil Law” [1]. Although simple at first glance, the extreme importance of the illustrious professor's lesson must be highlighted, especially after the publication of Provisional Measure— also known as the “MP for economic freedom” —, now converted into PLV. Opportunely, we highlight that the present study is the product of debates held at a seminar [2] organized by the Mineiro Institute of Tax Law (IMDT) in partnership with the Regional Accounting Council of Minas Gerais. Well, stating the existence of an intimate relationship between the aforementioned MP and Tax Law can cause some strangeness, especially when a hasty reading of the text in question.
In its article 1, paragraph 2 [3] , it is determined that, with the exception of the predicate in item The rules extracted from articles 1 to 4 are applicable to Tax Law and Financial Law and which, in general terms, can be considered as the “heart” of MP 881. The same occurs in PLV, see articles 1, paragraph 1 , and 24, paragraph 2. In this sense, the question arises: the much-acclaimed Declaration of Rights of Economic Freedom — as the MP calls itself —, which establishes standards of protection for free enterprise Middle East Mobile Number List and the free exercise of economic activity, would not exert any influence on Tax Law, notably in the judgment of issues such as the validity and enforceability of tax plans in the face of the Tax Authorities? In our opinion, that would not be the case. Recapitulating Mariz de Oliveira's teaching, we reaffirm the impossibility, or, at least, the mistake of evaluating, for tax purposes, the effects of different economic operations carried out by individuals, in a way completely dissociated from the civil rules that give them validity. and legal substance.
In other words, the qualification of businesses carried out by individuals must always be done in light of the normative diploma that grants them existence, validity and effectiveness. In this sense, there seems to be no other conclusion other than that, in the same way that Private Law is not concerned with the tax implications arising from the facts or legal transactions regulated by it, it would not be (or should not be) up to Tax Law (and very least to the tax authority) seek to attribute economic substance other than that already legally conferred on transactions carried out in accordance with what civil law determines. In other words, apart from cases in which the existence of some defect in the legal transaction carried out by the individual has been unequivocally proven, it would not be up to the person applying the tax rules to investigate what the taxpayer wanted, or didn't want, when carrying out a certain operation.
In its article 1, paragraph 2 [3] , it is determined that, with the exception of the predicate in item The rules extracted from articles 1 to 4 are applicable to Tax Law and Financial Law and which, in general terms, can be considered as the “heart” of MP 881. The same occurs in PLV, see articles 1, paragraph 1 , and 24, paragraph 2. In this sense, the question arises: the much-acclaimed Declaration of Rights of Economic Freedom — as the MP calls itself —, which establishes standards of protection for free enterprise Middle East Mobile Number List and the free exercise of economic activity, would not exert any influence on Tax Law, notably in the judgment of issues such as the validity and enforceability of tax plans in the face of the Tax Authorities? In our opinion, that would not be the case. Recapitulating Mariz de Oliveira's teaching, we reaffirm the impossibility, or, at least, the mistake of evaluating, for tax purposes, the effects of different economic operations carried out by individuals, in a way completely dissociated from the civil rules that give them validity. and legal substance.
In other words, the qualification of businesses carried out by individuals must always be done in light of the normative diploma that grants them existence, validity and effectiveness. In this sense, there seems to be no other conclusion other than that, in the same way that Private Law is not concerned with the tax implications arising from the facts or legal transactions regulated by it, it would not be (or should not be) up to Tax Law (and very least to the tax authority) seek to attribute economic substance other than that already legally conferred on transactions carried out in accordance with what civil law determines. In other words, apart from cases in which the existence of some defect in the legal transaction carried out by the individual has been unequivocally proven, it would not be up to the person applying the tax rules to investigate what the taxpayer wanted, or didn't want, when carrying out a certain operation.