Subcapitalização no Direito Tributário Brasileiro

repensando os seus Desafios no Direito Interno e Internacional

Abstract

This article proposes a reflection about the questions that have been raised about Brazilian thin capitalisation rules until this moment.
From the point of view of domestic law, we understand that the fixed ratio approach adopted is not necessarily a problem since it grants both practicability to Tax Administration and predictability to taxpayers. Its weak point is, however, its potential sabotage that can occur by its joint application with general rules related to expenses deductibility as the administrative jurisprudence has already shown to be possible.
From international tax law perspective, Brazilian thin capitalization rules are criticized not to comply with article 9 (associated enterprises clause) and article 24 (non-discrimination clause) of the OECD Model Tax Convention on Income and on Capital. We understand that if one consider alternative measures Brazilian thin capitalization rules are not necessarily incompatible with articles 9 and 24 from OECD Model Tax Convention.