A boa-fé sob a ótica do CARF no planejamento fiscal

Abstract

This study deals with the question of the tax planning, more specifically, on the use by the Treasury of good faith and the theory of abuse of rights as grounds for barring the tax planning prepared by the taxpayer. This is because in the absence of specific legislation to regulate the issue, raised the hypothesis of good faith being used by the Treasury, as a criterion to be evaluated when it chooses to characterize as abusive the act or business prepared by the taxpayer with the intention to pay less tax. For this, initially drew up a history of good faith, since its inception, with the bona-fides, considered the origin of the principle, through its relationship with the theory of abuse of rights to its application to public law. Complementing the study analyzes the institute of tax planning, its concept, its phases, as well as its relation to comparative law, discussing how such orders have been fighting the plan considered abusive. Delimited these respects, treated the CARF, the second instance organ, responsible for the administrative trial on federal tax harvest, discussing various aspects of this, including administrative activism today, the issue of Provisional Measure No. 685 and finally the analysis of five judgments delivered by this body, aiming thus offer through an academic contribution, a better understanding of the legal phenomenon, making it possible to check whether there is coherence and uniformity in the decisions of this body, thus contributing, for greater security in relationships, enabling the protection of the rights of taxpayers. Evaluating decisions, we can see that the need for a tax extra motivation to perform the act or business becomes, in fact, the criteria chosen by CARF to approve or consider abusive planning presented by the taxpayer and not the analysis of the presence or not of good faith when performing the act or business.