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In Brazil, there are almost 100 different fees, taxes and contributions. all of us, directly or indirectly, are contributors to these charges. 

As taxpayers, we have two ways to reduce tax burdens . The legal way is called tax avoidance (tax planning ) and the illegal way is called tax evasion

Tax planning is a set of legal systems that aim to reduce the payment of taxes. The taxpayer has the right to structure his business in the way he sees fit, seeking to reduce the costs of his enterprise, including taxes. If the form entered into is legal and licit, the public treasury must respect it.

Fraud or tax evasion consists of using procedures that directly violate tax law or tax regulations. It is a fraud that is hardly pardonable because it is flagrant and also because the taxpayer knowingly opposes the law. Jurists regard it as reprehensible.

On the other hand, in tax planning, without having to do with fraud itself, it is accepted that taxpayers have the right to resort to their procedimentos preferred, authorized or not prohibited by law, even when this behavior harms the Treasury. 

Tax planning has an objective to legally save (decrease) the amount of money to be delivered to the government. Taxes (taxes, fees and contributions) represent an important part of the costs of companies, if not the largest. With the globalization of the economy, the correct administration of the tax burden has become a matter of business survival.

On average, 33% of business revenue is directed towards the payment of taxes. Of the profit, up to 34% goes to the government. Of the sum of costs and expenses, more than half of the value is represented by taxes. Thus, the adoption of a legal economy system is essential.

There are three purposes for tax planning:

1) Avoid the incidence of the taxable event. Example: Replace most of the value of the pro-labore of the partners of a company, for distribution of profits, because from January/1996 they do not suffer the incidence of the IR either at source or in the declaration. In this way, the incidence of INSS (20%) and Income Tax at Source (27.5%) is avoided on the amount withdrawn as profits in lieu of pro-labore.

2) Reduce the tax amount, its rate or reduce the tax calculation basis. Example: when filling out your Income Statement, you can choose to deduct up to 20% of taxable income as a standard discount (with a fixed annual limit) or make deductions for dependents, medical expenses, private pension plan, etc. You will certainly choose the highest value, which will allow you to obtain a greater deduction from the calculation basis, to generate a lower Income Tax payable (or a higher amount to be refunded). 

3) Delay the payment of the tax, postponing (postponing) its payment, without the occurrence of the fine. Example: transfer company billing from the 30th (or 31st) to the 1st day of the subsequent month. With this, you gain an additional 30 days to pay PIS, COFINS, SIMPLES, ICMS, ISS, IRPJ and CSLL (Actual Profit by estimate), if at the end of the quarter up to 90 days of IRPJ and CSLL (Assumed Profit or Actual Profit quarterly) and 10 to 30 days if the company pays IPI. 

Law 6,404/1976  (Law of S/A) provides for mandatory tax planning by the managers of any company, according to the interpretation of article 153 ( "The director of the company must, in the exercise of his functions, employ the care and diligence that every active and upright man is wont to employ in the administration of his own affairs").

Therefore, before being a right, a college, tax planning is mandatory for every good administrator. Thus, in Brazil, there has been an "explosion" of Tax Planning as a practice of organizations. In the future, the omission of this practice will provoke the discredit of those omissive administrators.

Currently, we are not aware of any cause or action, proposed by a shareholder or debenture holder with profit sharing, in this regard. However, in the future, inactivity in this area may cause damages on the part of shareholders harmed by the administrator's failure to pursue the lowest tax burden. 

Tax planning is healthy for the pocket, as it represents greater capitalization of the business, the possibility of lower prices and also facilitates the generation of new jobs, as the resources saved can enable new investments.

Tax Planning (Tax Planning or Tax Avoidance)

See also: Recovery of tax credit

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