According to a survey conducted by Global Entrepreneurship Monitor (GEM) [1], It is estimated that a total of 53.4 million Brazilians are engaged in some form of entrepreneurial activity. Furthermore, an analysis of the historical series of the GEM Survey...[2], A study conducted in the country, together with Sebrae, pointed to a record increase in early-stage entrepreneurship.

The major influencer in the financial market, Nassim Nicholas Taleb, in his book The Black Swan, reinforces the need to strengthen fragile scenarios in order to create a driving force for the creation of positive ones.

Therefore, it is important to emphasize that to create positive scenarios, entrepreneurs tend to focus on the commercial aspects of their businesses, that is, on operational development, with the sale of their product as the central point.

However, tax planning is essential for beneficial development for those already working in the field or those wishing to start a business, especially in Brazil, where the high tax burden is well known, since the State has the power to establish taxes.

O tribute It is a monetary payment to be made to the State, as defined in Article 3 of the National Tax Code.[3]. Thus, once the taxable event has occurred, the taxpayer or responsible party will be obliged to pay the corresponding amount to the public treasury.

Note that, since the taxable event exists and, consequently, there is an obligation to pay the tax, the taxpayer may direct their business in such a way that the event described in the tax law does not occur, or that the event occurs at a lower value.

It is important to highlight the discussion regarding the limits and validity of elision e tax evasion, no tax planning, as provided for in article 116, sole paragraph, of the National Tax Code.

Although there is no unanimous agreement in legal doctrine regarding these institutions, the prevailing trend is that... tax avoidance This refers to the practice of legal acts aimed at preventing the occurrence of the taxable event, that is, the payment of the tax.

According to Marco Aurélio Greco[1], "Planning and tax avoidance are concepts that refer to the same reality, differing only in the framework adopted and the emphasis they place on certain elements." The author states that planning focuses on the taxpayer's conduct and its respective qualities, such as: contractual freedom, legality, and timing of the conduct. Tax avoidance, on the other hand, refers to the effects that this conduct generates in relation to the incidence and collection of taxes.

According to the legal scholar, planning refers to "the set of actions that a taxpayer can take in order to achieve the lowest possible tax burden.".

Therefore, the tax avoidance This occurs through tax planning, which involves identifying the legal means and measures to reduce a company's tax burden, legally adapting the best procedure for each operation, aiming for lower prices and higher sales of its products.

Avoidance can occur in two ways: Driven by existing law within the legal system, aimed at reducing taxation for companies that meet certain requirements, such as exemptions granted to companies located in underdeveloped regions, and also by existing legal loopholes due to the absence of regulations, since the Federal Constitution establishes that no one is obliged to do or refrain from doing anything except by virtue of law. In other words, this creates the possibility for taxpayers to save on taxes due to potential "legislative flaws.".

Whereas, the tax evasion In a broad sense, it would be "any and all action or omission tending to evade, reduce, or delay the fulfillment of the tax obligation," as defined by Antônio Roberto Sampaio Dória. Tax evasion in the strict sense, defended by most legal scholars, refers to an illicit practice (fraud, tax evasion, simulation) where, after the occurrence of the taxable event, the taxpayer avoids paying the tax.

It is important to emphasize that entrepreneurs have broad freedom to organize their businesses, but this freedom is limited in cases of simulation. Furthermore, the Civil Code, in its article 167, provides for the disregard of simulated legal transactions.

Thus, the tax planning This is a crucial analysis for a company to achieve its tax objectives within the bounds of legality. It allows the company to verify if its operations are being conducted in a favorable manner, where the company obtains benefits through the elimination or reduction of taxes, or if a corporate reorganization is necessary. In addition to reducing the tax burden, other advantages include increased profitability, greater competitiveness, and increased company security.

It is important to emphasize the issue of the principle of fiscal neutrality. According to Paulo Caliendo[1]:

“"Fiscal neutrality is based on the premise of preventing taxation from causing imbalances in the economy, especially in the price system. The principle of fiscal neutrality advocates that taxation should have the least possible impact on the economy, in order to maintain its overall equilibrium."”

Therefore, for entrepreneurs to structure their operations and businesses in a way that minimizes their tax burden, tax planning becomes paramount, since the relationship between tax authorities and taxpayers is marked by a clash of ideas and interests.

No matter how much knowledge a taxpayer has regarding taxes, it is of utmost importance to seek tax planning so that they do not have problems with the tax authorities in the future and, at the same time, better manage the tax burden of their company.

Today, living through a pandemic, a time when the government has been contributing with tax benefits to help businesses in the country, tax planning is essential for both established entrepreneurs and those who are starting out and seeing opportunities with new businesses.

In conclusion, efficient tax planning, when developed by a tax professional who, based on legal norms or the absence thereof, utilizes tax avoidance strategies, will provide risk relief for the company, thus obtaining significant financial benefits, translating into increased profitability and corresponding returns, due to the possibility of tax reduction.

Article written by Anna Gabriela, Lawyer, graduated in Law in 2012 from the Professor Damásio de Jesus Law School. Area of Expertise: Customs Law and Tax Law, OAB (Brazilian Bar Association): 348.552. A

[1] CALIENDO, Paulo. Tax Law and Economic Analysis of Law: a critical view. Rio de Janeiro: Elsevier, 2009

[1] GRECO, Marco Aurélio. GODOI, Marciano Seabra (Eds.). Social Solidarity and Taxation. São Paulo: Dialética, 2005.

[3] Art. 3º Tax is any compulsory pecuniary payment, in currency or whose value can be expressed in currency, which does not constitute a sanction for an illicit act, established by law and collected through fully bound administrative activity.