Análise crítica do combate à elisão fiscal no Brasil à luz da análise econômica do direito

Abstract

The present work seeks to shed light on the debate regarding the fight against tax avoidance in Brazil, bringing elements of Economic Analysis of Law into the discussion. The objective is to analyze the concrete effects of the current way the fight against tax avoidance is conducted by the Public Administration. The theoretical premises of this study are the logical-semantical constructivism, the theory of the firm, transaction cost economics, market failures, and government failures. The approach begins with outlining basic concepts of Economic Analysis of Law, continues with constructing an overview of the fight against tax avoidance in Brazil, focusing on the analysis of Marco Aurélio Greco's work, the leading exponent of the predominant theoretical current at the moment, and the investigation of how this theory is being received and applied by the main tax judgment bodies in the country – CARF, STJ and STF. Based on the observed scenario, a connection was made between the previously discussed concepts of Economic Analysis of Law and the relevant figures in the discussion of combating tax avoidance. After constructing this theoretical framework, a critical analysis and diagnosis of the effects of the current methods of combating tax avoidance in Brazil were conducted, to then propose public policy solutions that have the capacity to achieve the same end with less onerous means for the national economy. At the end of the analysis, it was concluded that the most efficient way to combat tax avoidance is through the continuous improvement of legislation, in substitution of the current methods, which create a scenario of choice under uncertainty and, consequently, make rational choice by taxpayers unfeasible.