Sujeição passiva e responsabilidade tributária na reorganização societária: incorporação, fusão e cisão

Abstract

This study aims to examine the body of prescriptive statements which regulate tax liabilities in case of incorporations, mergers and spin-offs. To accomplish this objective, based on the belief that the Brazilian legal system has a hierarchical structure and that the national constitutional tax subsystem is especially exhaustive, this work analyzes the constitutional text in an attempt to identify the formal and material assumptions which condition the creation of legal hypotheses of tax debt. Based on these grounds, the constitutional rules of the Brazilian Tax Code are analyzed, especially focusing on the definitions of tax liability and tax debt, in order to formulate a proposition of a systemic categorization of tax debtors. After that, the legal notion of a corporate reorganization is built, and in harmony with the genre that encompasses types such as incorporations, mergers and spin-offs, each case is particularly taken into account, focusing on the special features that each one of these operations foregrounds. The final part of the study, which is divided into two stages, examines the tax liability of the aforementioned corporate reorganizations: the first part deals with incorporations and mergers, by determining when the characteristics and the scope of this mode of liability can be demonstrated; and the second part regards spin-offs, by detailing, upon apparent lack of an express prescriptive statement providing such kind of imposition of liability, the alternatives to the enforcement of a solution within this context of a potential gap; and finally, a consistent interpretative outcome is proposed