Imposto de renda sobre lucros auferidos no exterior

Abstract

This dissertation aims to analyze taxation of income tax on profits obtained abroad by a controlled legal entity or foreign affiliate to the controlling or affiliated legal entity domiciled in Brazil. Topical rule referring to income tax, according to Law No. 12,973, of 2014, provides for an automatic taxation system, in which the parent company or affiliate domiciled in Brazil, with rare exceptions, is obliged to bring to taxation the equivalent of its share of profits that were earned abroad, even if there was no act of distribution of income obtained by the subsidiary or foreign affiliate. The study started from the analysis of the income taxation systems that a national state can adopt, passing through the Brazilian legislative history that culminated with the current rule of taxation of profits that were earned abroad. In this analysis, it was found that the claim to tax earned profits by a controlled company or foreign affiliate before its distribution to the company domiciled in Brazil was introduced in the complementary federal legislation, aiming at the combating tax avoidance and abusive tax planning. Based on this complementary federal provision, the ordinary legislature issued Provisional Measure 2.158-35, whose art. 74 was the subject of action right of unconstitutionality in the Supreme Court. The action was effectively judged erga omnes and binding effect, based on an interpretation according to the Constitution, to declare the provision: (a) unconstitutional in relation to domestic companies related to foreign companies located in countries without favored taxation; and (b) constitutional in relation to national companies controlling foreign companies located in countries with favored taxation. The issue is that, after calculation of votes, before the multiplicity of arguments brought by the Ministers of the Supreme, some situations were not encompassed by the judge. Similarly, it was not possible to extract a ratio decidendi from the trial. Subsequently, the Provisional Measure 2.158-35 was repealed, giving rise to the current tax rule that was provided in Law No. 12,973 from 2014. From this legislative history, the analysis of the National Tax Code was elaborated, and it was seen that the claim of the complementary legislature, when taxing income not yet acquired, would have a legal nature of a presumption or legal fiction. The study of presumptions and legal fictions allowed us to conclude that Brazilian tax law does not allow the use of absolute legal presumptions or fictions regarding taxation, but only relative legal presumptions. This was also observed when the concept of income and its relationship with the fact that the tax was used. With such partial conclusions, the analysis of Paragraph 2 of Article 43 of the CTN was made specifically to verify whether its wording would give the ordinary legislature legal permission to create a relative legal presumption. However, in order to confer such interpretation, it would be necessary to go beyond the text, by making use of interpretation technique according to the Constitution. However, given the requirements of this technique, it was concluded that the simple unconstitutionality of the provision of § 2 of Art. 43 of the CTN was concluded. In any case, by weighting interests, it was found that the ordinary legislature could use relative legal presumption to combat tax avoidance and abusive tax planning without the need for authorization by the federal supplementary legislature. In view of these partial conclusions, the current Law No. 12,973 from 2014 was analysed, which leads to the conclusion that it was unconstitutional, since it uses absolute legal presumption to tax the profit that was obtained by a subsidiary or foreign company, before the distribution of income to the company domiciled in Brazil.