Adequação social tributária: contributo para a compreensão constitucional do planejamento fiscal agressivo de multinacionais.

Abstract

This master’s thesis has as its theme the aggressive tax planning of multinational companies, through the use of technical differences between different legal systems (hybrid mismatch arrangements). The perspective adopted will be entirely new, by submitting an understandable canon of international tax law, which is the social adequacy of tax. This proposed solution is intended to harmonize the principle of legality and tipicity, with fairness and tax education. It is, above all, a legal system response to formal crisis that hit in tax matters, especially about the unfair distribution of the tax burden arising from aggressive tax planning of multinationals, both foreign and Brazilian. This type of taxpayer behavior generates a number of negative effects on the human right to development, especially in the global financial crisis times. However, this does not mean that this work disregards the importance of formalism of the tax law, which is a legal area of expertise that values certainty and security. The central issue is the popular growth of a sense of injustice that needs to be properly considered. At this point, it appears that the pure positivist model does not have a structure to take care of the dangers resulting from the expansion of globalization and the speed with which everything happens in the XXI century. There is also the great influence of globalization, which makes markets operate in a dynamic way and complex than ever observed. Thus, it can be stated that the justification for the construction of this text is precisely the importance of the fight against the base erosion and profit shifting (BEPS): taking into account that all rights have a financial cost as less resources are available for national governments, the most affected are the public policies. That said, I must highlight the difficulties of trying to harmonize the social adequacy of a broad discussion that permeates the relationship between tax law and justice. Even today, this relationship between law and morality is still a field without a definitive answer. And if Hans Kelsen is correct, this may be an academic challenge for which there is no final answer. Maybe just ask a little better. In this line, it should be noted, as wisely emphasized Castanheira Neves, which is given to men who speak and take risks, the right to make mistakes. We will talk and therefore accept the risk.