THE SUFFICIENT TAX LEGALITY PRINCIPLE IN BRAZILIAN SUPREME COURT AND THE TAX DEFINITION OF INTANGIBLES

Abstract

This paper aims to address the existing concepts of intangibles, proposing a concept in the tax scope, since there is no express definition of intangibles in Brazilian tax legislation. Before this gap, it will be carried out an analysis of the property intellectual Brazilian legislation, tax laws that address intangibles, and the express concepts present in OECD publications, as well as publications of entities dedicated to Accounting study. In Brazilian legislation analysis, special attention will be paid to software and services. On the other hand, the study of intangibles concept drawn up by OECD will approach the guidelines related to the transfer price of intangibles that, despite its delimitation to multinational operations, are useful to the understanding of the intangibles in general. At the end of this paper, a proposal of the intangibles definition for tax purposes in Brazilian legislation will be drafted. In addition to this conceptual proposal, it will be also discussed the methodology for this purpose, which may dispense a significant action to the rules of the hierarchy below the law, bearing in mind the current understanding of the sufficient tax legality, already adopted by the Brazilian Supreme Court. As a result of this jurisprudential guidance, this paper proposes it is possible the setting in law of a broad concept of intangibles for tax purposes, making room for the complementation by normative acts arising from tax administration.