Can tax issues be resolved with traditional solutions?
A study conducted by the World Bank indicates that the time companies spend on tax obligations in Brazil ranges from 1.483 to 1.501 hours per year.
There are several reasons that lead to these figures. The tax system is composed of complex laws, complicated tax requirements, and the incidence of various taxes on the same product.
Therefore, discussing tax planning is always a major challenge. This is because, for tax planning to be effective, a multidisciplinary dialogue is necessary, involving lawyers, accountants, economists, and business administrators.
Note that if you discuss tax obligations with a "traditional lawyer," the likely response would be something like: "make the payment on the due date and the tax obligation will be extinguished."
Is the answer wrong? No, after all, the tax credit is extinguished by payment (article 156, I, of the CTN).
It turns out that, in an extremely competitive market where price is a key factor for new business, the use of legal strategies to (re)think the tax burden becomes more than necessary.
It is within this line of reasoning that tax planning is born.
Tax planning in the case of "Sonho de Valsa"
Do you remember that, some time ago, the famous "Sonho de Valsa" chocolate changed its packaging?
This was undoubtedly one of the most important tax strategies for the candy manufacturing company, proving that efficient planning can generate millions in savings for the business.
When the old packaging was used, the product was classified as a "chocolate bonbon." Therefore, it was subject to a 5% IPI (Tax on Industrialized Products) rate.
With some changes that occurred in tax legislation, it was possible to reclassify the product, so that, now considered as "bakery, pastry or biscuit industry products", the former bonbon would be subject to 0% IPI (Tax on Industrialized Products).
The case became famous and sparked a desire in many professionals to improve their studies in Tax Law, since they can effectively solve their clients' everyday problems.
So, what exactly is tax planning?
For a better understanding of our object of study, it is important to define the concepts.
Professor Silvio Crepaldi, in studying the subject, points out that tax planning is a preventive act, aimed at finding mechanisms that allow for a reduction in financial outlay for tax payments.
From this concept, we can draw three conclusions:
Since this is a preventative measure, professionals in this field must be aware of Brazilian legislation, in addition to understanding their clients' daily routines. This way, they can propose solutions to reduce the tax burden.
It should be taken into account that this is a lawful procedure, also known as tax avoidance. Therefore, we are not talking about tax offenses;
The main idea behind tax planning is to avoid tax liability, with the aim of preventing the occurrence of the taxable event.
What is the path to successful tax planning?
To achieve success in the tax field, especially in the preventive aspect of planning, it is necessary to analyze certain elements.
The most important thing, without a doubt, is knowledge of tax legislation. Therefore, the professional must be attentive to the problems their client faces daily, understanding the company's field of activity and the client's profile.
Another important factor in achieving results when it comes to tax planning is understanding whether or not the products produced or sold by your client's company are subject to tax substitution. Examples include ICMS, IPI, PIS, and Cofins.
Furthermore, it is interesting to know the financial operations carried out by the company and to know which is the best tax framework, since there is a possibility of taking advantage of tax credits on the company's purchases.
What are the main objectives of tax planning?
For tax planning to be considered efficient and to meet your client's expectations, it is essential that you understand the objectives that justify the planning.
The first, and most impactful, is the reduction or elimination of the tax burden on companies.
You might be wondering, "How can this be done?" Well, the main idea is to prevent taxable transactions from taking place, or, as we saw in the "Case of the Waltz Dream," to find ways to reduce the taxable base.
Another objective that can greatly aid in a company's development is the elimination of tax contingencies. Generally, this can be achieved through the maintenance of adequate internal controls.
Practical example: traffic fines "doubled" for legal entities
Now, when it comes to tax contingencies and internal controls, it is important for the legal entity to work with professionals who are knowledgeable about the tax legislation applicable to the problems they face on a daily basis.
Imagine a company that works with the delivery of goods, which has, on average, 200 employees who are transporting products purchased online every day.
If all vehicles used by company employees are owned by the company, any traffic fines incurred will be charged to the company.
However, according to traffic laws, if the company fails to identify the offender, it will be penalized and will have to pay double the amount!
Therefore, "(...) if the offender has not been identified, and the vehicle is owned by a legal entity, a new fine will be issued to the vehicle owner, in addition to the original fine for the infraction, the value of which will be equal to twice the value of the original fine" (art. 257, § 8º, CTB).
Therefore, in order to prevent the freight transport company from paying double the fines, the company owner must identify the person who violated the traffic laws.
In this case, for example, the company will only pay the original fine, in order to reduce its costs.
Tax planning in practice: how to do it?
Let me warn you right now: you'll need a lot of study! That's because professionals will face many challenges along the way in order to propose effective solutions for their clients.
But to make your life easier, we'll present a step-by-step guide!
1 – Define the company's tax regime!
It's important to understand your client's business and determine the best tax regime for the company.
The company can be taxed based on actual or presumed profit. There is also the possibility of taxation by arbitration or under the Simples Nacional regime (for small and medium-sized enterprises).
2 – The entrepreneur's actions must follow the adopted model!
Now, for tax planning to be efficient and yield results, the business owner must dedicate themselves to structuring their company's operations in accordance with the adopted tax regime.
3 – Put your tax planning into practice!
If the business is planned and structured based on a tax logic, now it's just a matter of analyzing where there is room for actions to reduce tax costs.
A company can reduce its tax costs by decreasing the tax base and percentages of taxes, fees, and other fiscal charges.
It should be noted that tax recovery may also occur through tax offsetting, a topic of much debate in the practice of tax law.
Golden tip: continuous learning is essential!
Studying tax law is essential for developing your tax planning skills and achieving success in your law firm.
One thing is certain: knowing the text of the law is not enough. To delve deeper into a subject, it's important to research, read, participate in courses and lectures, and specialize in the area you want to work in!
You can, for example, read good books on the subject and pursue a specialization. This is because, during the week you will be reading about complex topics in tax law, and in class you can clarify doubts with professors and colleagues in the field.
Furthermore, you can choose to specialize with a postgraduate degree in Tax Law from IDP . This will prepare you to be an expert in the market, with live classes taught by leading professors.
References
CHAVES, Francisco C. Tax Planning in Practice – Applied Tax Management, 4th edition. GEN Group, 2017. E-book. ISBN 9788597011876.
CREPALDI, Sílvio A. Tax Planning. Saraiva Publishing House, 2021. E-book. ISBN 9786587958361.
SEGUNDO, Hugo de Brito M. Manual of Tax Law. Grupo GEN, 2022. E-book. ISBN 9786559772261.
RUSSI, Anna. World Bank: Companies spend up to 1.501 hours paying taxes in Brazil. CNN Brazil. 2022. Available at: https://www.cnnbrasil.com.br/business/banco-mundial-empresas-gastam-ate-1501-horas-para-pagar-impostos-no-brasil/
