The (Lack of) General Anti-avoidance Rule in Brazilian Tax Law

between the Fundamental Duty to pay Taxes and the Right to save them

Abstract

The article addresses the issues related to the nature and applicability of article 116, sole paragraph, of the Brazilian Tax Code. There is a doctrinal divergence regarding the correct interpretation of this provision: on the one hand, there are those who defend the nature of a general anti-avoidance rule for this provision, whose purpose would be to authorize the Public Treasury to disregard for fiscal purposes the acts and legal transactions practiced with the purpose of saving taxes, which in itself would be abusive; on the other hand, there are those who defend the nature of specific anti-avoidance rule to this provision, in the sense that it would be directed only to the hypothesis of dissimulation. The article will start from the literal and systematic interpretation of the provision to defend that its correct interpretation is of a specific anti-avoidance rule. From the establishment of this premise, it is analyzed the scope and limits of a general anti-avoidance rule in the National Tax System, given the existence of a fundamental right to save taxes protected by the Constitution. In addition, it proposes to criticize the decision of the Administrative Council of Tax Appeals whose conclusions differ from those supported here.