The multidisciplinary focus of tax planning in the identification of tax reduction opportunities and risk of tax issues

por The Winners
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Arnaldo Marques de Oliveira Neto, Tax and Corporate Governance Consultant, Executive Academic
Coordinator of the MBA in Financial and Economic Management
of Taxes at FGV and Professor in Postgraduate Courses at
renowned educational institutions

The complexity and dynamism of the national tax system (STN) and its growing sophistication, especially after the implementation of the Public Digital Bookkeeping System (SPED), have occasioned the need for enterprises to organize their business under appropriate tax governance for effective and efficient tax compliance, in order to maximize the legitimate economy of taxes and avoid or minimize the risk of possible questioning by the tax authorities, which may result in identification of tax contingencies and the consequent issuance of notices of violation (infringement notification), with a corresponding recovery of punitive fines and penalty interest.

From the tax point of view, there may be the extent of the responsibility of the legal entity to its partners, directors, officers, or legal representatives in some of the situations referred to the National Tax Code , which may even result in the blocking of their personal property, including their bank accounts, among other measures.

The STN, for over a decade, has been gaining efficiency and technological sophistication, regarding the tax inspection and collection and combat of tax evasion. Its high point is the SPED, digital tool that unifies the activities of receipt, validation, storage, and authentication of documents and books of commercial and tax bookkeeping of entrepreneurs
and entrepreneurial enterprises through unique and computerized information flow.

SPED aims to promote integrated operation of federal, state, and municipal tax authorities, through the standardization and streamlining of information and shared access to digital accounting and tax bookkeeping of the taxpayers.

In Brazil, uncertainty, ambivalence, and the juridical insecurity concerning tax matters, for decades, have led enterprises to court. At the Federal Supreme Court there are various billionaire tax disputes waiting a long time for an outcome.

Therefore, the big challenge for executives is to determine how much uncertainty the enterprise is capable of monitoring to continue generating value. Thus, the adoption of a risk and opportunity management model in the tax area is perceived as a tool of management needed to create a culture of prevention to mitigate risks and generate
business opportunities, supported by a framework of strong and effective internal controls (SÁ 2009).

In view of all this, entrepreneurs and managers, more and more, must face the strategic management of taxes, with an increasingly multidisciplinary focus, analyzing and treating taxes, at the same time, under the prisms: accounting, tax, corporate, financial, regulatory and legal ones, which will allow them to understand and act, with more ease and security, in the two aspects of tax planning, which are: (i) the identification of opportunities to reduce the tax burden; and, (ii) the identification of risks of questioning by tax authorities.

In an attempt to identify, classify, evaluate, measure, treat and manage opportunities and risks in the tax area, entrepreneurs and managers, together with their external lawyers and tax consultants (when necessary) should act
on the four fronts of action of strategic tax management, which are: (i) identification of the possibility of administrative
and / or judicial discussion of taxes; (ii) analysis of the best system for calculating and paying taxes; (iii) taking advantage of existing tax benefits; and, (iv) prior analysis of strategic operations, business combinations between independent parties and corporate reorganizations in companies under common corporate control.

The multidisciplinary approach will help entrepreneurs and managers to see, from various angles, the effects and consequences of the actions to be implemented, whether related to opportunities to reduce the tax burden or to identify the risks of questioning by the tax authorities.

This is because, in addition to the legal effects, these actions may involve provisioning and accounting adjustments that, in turn, may impact the income for the year, the payment of dividends and, consequently, the company’s value.

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