Tax planning is crucial for progressive businesses and individuals aiming to lower their tax obligations in a legal and strategic manner.
Tax planning is a legitimate practice that allows taxpayers to structure their business in the most advantageous way possible within the bounds of the law, unlike tax denial, which involves fraud and illegal omissions.
The tax attorney’s role in this situation is crucial as they recognize chances for tax savings, mitigate risks, and ensure the business’s legal adherence.
Lawyer Ademar Marques Junior (OAB/SP 181.690), who specializes in Tax and Business Law with a postgraduate degree in Tax Law, provides his expertise in this article.
It provides clear answers about tax planning, its various types, and the role of lawyers in enhancing customer value. Take a look!
Understand the updated tax system regulations for the consumption tax reform as per LC 214/2025.
How can a tax attorney assist in organizing holdings to maximize the tax efficiency of family businesses?
One must initially grasp the responsibilities of a tax business attorney who is a partner in a family business, along with the accounting firm, as stated by attorney Ademar Marques Junior.
However, there is a fundamental distinction between the two.
- The counter is a service provider focused on delivering specific outcomes, like providing tax guides.
- The tax lawyer offers guidance to help businesses comply with the law and minimize taxes while ensuring legal security.
There are legal avenues available in tax law, either through administrative or judicial processes, to gain advantages or benefits that can be obtained through tax planning.
This includes establishing entities that oversee other businesses or assets to streamline management and leverage specific tax advantages for savings.
The text is a thorough examination of how events unfold in various types of businesses in order to determine how tax-generating activities are being assessed in accordance with regulations.
Tax planning can be adjusted to continue but at a reduced cost by leveraging laws that govern benefits and align with values.
The accountant alone cannot identify and promote suitability because it occurs in a specific manner within the bounds of the law.
The formation of assets should always be done within a framework of tax planning, which is where the selection of the most suitable corporate structure (pure, mixed, or patrimonial) takes place.
Efficient succession planning aims to ensure business continuity and ease the transfer of family assets while reducing taxes and legal issues.
The establishment of a dedicated tax management department enables strategic decision-making in tax payments, ensuring increased efficiency and fiscal awareness.
This division can combine the outcomes of various firms to facilitate the settlement of Income Tax and CSLL, allowing for the offsetting of tax losses between them.
The examination of dividend taxation can reveal benefits compared to distributing directly to partners.
Real estate administration can be organized to maximize the pursuit of tax advantages in rental management or property transactions.
Patrimonial protection is intended to protect the assets of specific businesses, and corporate restructuring (mergers, divisions, incorporations) can be strategically organized within a family group to enhance tax efficiency throughout the process.
How does tax planning differ after the recent tax reform, and what effects are most significant for businesses?
Tax planning is crucial for Brazilian companies due to the significant tax burden and the risk of facing criminal charges under certain laws, as stated by lawyer Ademar Marques Junior.
Following the Brazilian tax regulations without a thorough analysis is the most significant risk for businesses.
The Brazilian tax system is complex and constantly changing without clear communication or easy understanding.
The recent tax reform (Complementary Law No. 201/2023 and related regulations) has introduced major alterations affecting corporate tax planning.
The most significant effects are:
- The consolidation of PIS/Cofins into the Contribution on Goods and Services (CBS) simplifies consumption taxation by introducing a uniform rate and broader non-cumulative system, potentially shifting the tax burden across different sectors.
Companies will have to reassess their PIS/Cofins credits and debits and adjust to the updated CBS regulations.
- IBS, similar to CBS, combines state and municipal consumption taxes to simplify the system and reduce complexity for businesses operating across various states and municipalities.
The shift to IBS will necessitate focus on the regulations for credits and debits, along with the rates that will be established.
- The reform includes gradual adjustments to the rates and calculation basis of Income Tax for Legal Person (IRPJ) and Social Contribution on Net Income (CSLL), potentially affecting companies’ tax burden on profits. Monitoring the new regulations and their sector-specific implications is crucial.
- The reform aims to decrease the amount of special schemes and tax advantages, potentially leading to a higher tax burden for certain companies. Identifying altered benefits and exploring legal options to lessen the impact will be essential.
- The reform may implement a tax on dividends paid to shareholders, which would greatly impact the tax strategies of numerous family businesses that previously relied on this tax-free method of compensation.
- The reform set up guidelines for transitioning to CBS and IBS, allowing for a period where both the old and new systems will coexist. Businesses must carefully plan this shift to prevent mistakes and benefit from opportunities.
Since the Federal Constitution was enacted, Brazil has been anticipating a tax reform that is both equitable and effective.
Governments have long neglected to address this issue, and these measures alone will not lead to success in achieving consensus on this complex and deep-seated problem.
What are the primary legal tactics to lower taxes without facing the possibility of increased taxes?
The tax lawyer’s primary tool, according to attorney Ademar Marques Junior, is tax planning and a thorough comprehension of his clients’ businesses.
It enables the selection of more engaging tax systems (such as national simples, presumed profit, or actual profit) and allows for analyzing and strategizing the involvement of the parent company in a more appropriate tax framework within small business networks.
Search for companies that can utilize tax credits and incentives provided by government entities at the federal, state, and local levels.
The company establishes an accounting legal department to manage taxes effectively and ensure compliance with the law while minimizing tax payments.
How does selecting a tax regime (such as National Simples, Presumed Profit, or Real Profit) affect a company’s tax planning?
It is a technical analysis conducted by lawyer Ademar Marques Junior that assesses family businesses on an individual basis, leading to the creation of tailored strategic plans for both the overall holding and the specific company type.
In Simple Nacional, we can conveniently pay multiple taxes together in one payment based on revenue and business activities, with increasing rates.
This regime has constraints related to invoicing, business activities, and the inability to utilize tax credits that are advantageous for highly profitable companies. As a result, there is an unwanted regime switch that can occur based on the circumstances.
The expected profit is simpler than the actual profit, but it can be challenging for businesses under the National Simple tax regime, making their accounting more complicated.
In this tax system, the calculation of Income Tax (IRPJ) and Social Contribution on Net Income (CSLL) is simplified by applying a percentage on gross revenue to determine the taxable profit, depending on the company’s industry, without verifying actual profitability.
To address the issue of assumed profit without considering tax fairness, we have the Real Profit system, which involves complex calculations and eliminates additional obligations, leading to increased accounting costs and bureaucracy for companies.
Therefore, benefiting from deductions on different expenses and utilizing the tax credits of PIS/Cofins are considered advantages.
The Income Tax (IRPJ) and the Social Contribution on Liquid Profit (CSLL) in this tax system are determined based on the company’s net accounting profit, which is modified according to the specific inclusions and exclusions outlined in tax laws.
The selection of these systems should be carefully examined as part of a thorough tax planning process conducted by tax industry advocates.
Types of tax planning and how lawyers implement it.
The lawyer’s practice can take place in various forms of tax planning, with the primary ones being:
Strategic tax planning
This model aims to organize the company effectively by evaluating the most beneficial tax system.
National Simple
- Targeting micro and small businesses with annual revenues of up to R$ 4.8 million.
- It offers reduced rates and tax unification, but certain sectors like financial institutions are exempt.
Presumed earnings
- Applies to businesses with annual revenue of $78 million or less.
- Taxable income is calculated using set percentages of total revenue, which differ depending on the type of business activity.
- Suitable for businesses with profit margins higher than the percentages estimated by the government.
Actual earnings
- Companies that have an annual billing of more than R$ 78 million or belong to certain sectors like banks and insurers are required to comply.
- The tax is based on the company’s real net income, which can benefit businesses with narrow margins or losses.
Choosing the wrong government system can lead to high taxes, which can decrease the competitiveness of a business.
Tax planning done in advance to avoid potential tax issues.
The tax attorney can predict and prevent tax risks by examining loopholes in laws, assessing agreements, and ensuring that activities adhere to tax regulations.
- Contracts are reviewed to prevent tax inspections.
- Compliance with regulations from the Federal Revenue and State Finance authorities.
- Possible tax credits identification.
Tax planning for business operations
Operational planning focuses on implementing fiscal strategy practically through actions like:
- Utilizing tax benefits like exemptions and reductions.
- Tax ratings review to prevent unnecessary fees.
- Recovery of taxes previously paid, such as ICMS-ST and single-phase PIS/COFINS, is significant.
Tax planning for businesses
This mode is crucial for mergers, acquisitions, and corporate reorganizations. Corporate structuring helps prevent double taxation and enhances operational efficiency from a tax perspective.
- Establishing a family holding company to safeguard assets and minimize estate taxes.
- Reorganizing business groups to maximize financial efficiency.
- Tax burden decrease in business succession transactions.
How can the attorney participate in tax planning?
The tax attorney’s performance is strategic and involves various aspects to ensure legal certainty for clients. Key areas of focus include:
Ideal tax system selection
The tax attorney assists companies in choosing the most advantageous regime, taking into account factors such as profit margin, billing and activities developed.
- Comparison between Simple National, Presumed Profit, and Real Profit analyzed comparatively.
- Identifying tax advantages accessible for the industry.
- Simulations are conducted to determine the tax implications of each system.
Protection from tax revenue
Companies might become informed about mistakes in the tax certificate, failure to collect taxes, or not meeting additional obligations.
The lawyer provides administrative and legal defense to prevent financial losses.
- Challenging tax violations;
- Administrative support for the Federal Revenue and Finance Secretariats.
- Legal representation in tax collection cases.
Reevaluation and retrieval of erroneously paid taxes.
Many businesses incur higher taxes due to mistakes in tax compliance or failure to utilize tax credits.
The tax lawyer can recognize these principles and suggest actions for regaining them.
- The biggest request is for compensation or refund of taxes paid.
- Reviewing the calculation of ICMS-ST, PIS/COFINS, and IRPJ.
- Efforts to reclaim unlawfully imposed taxes.
Effective planning and taxation of inherited assets
Inheritance and gift taxes can be substantial, with rates differing by state.
The attorney has the ability to arrange family assets or other methods to minimize the tax consequences on inheritance.
- Establishing ownership rights to protect assets.
- Efficient tax planning using dedicated funds.
- Minimizing ITCMD (Imposed on Transmission Cause Mortis and Donation) is being planned.
8 Books on Tax Planning for Lawyers
I have compiled a list of important books on tax planning for legal professionals, along with a short overview of each book.
Tax Planning: Case Study – Analysis of Marco Aurélio Greco
This book offers a hands-on method for tax planning using real-life examples. Greco examines how Brazilian legal decisions have developed and explores the boundaries between tax avoidance and tax evasion.
The study is particularly useful as it provides a method for assessing the validity of tax-saving strategies in accordance with constitutional principles.
Brazilian Tax Law Course by Paulo de Barros Carvalho
Although not solely focused on tax planning, this study is essential for comprehending the Brazilian tax system.
The author thoroughly examines fiscal constitutional principles and tax rule structures, laying the necessary theoretical groundwork for creating effective tax planning strategies.
Tax Planning and Business Economics by Edmar Oliveira Andrade Filho
This work discusses a business strategy for tax planning.
Andrade Filho explores the impact of business decisions on organizations’ tax obligations and provides recommendations for incorporating tax planning into the business strategy using real-life cases and illustrations.
Eduardo Sabbag authored the Tax Law Manual.
Sabbag provides a comprehensive and educational overview of the Brazilian tax system, with a dedicated section on tax planning.
The book provides an in-depth examination of laws, legal principles, and court decisions, serving as a valuable resource for lawyers who want to grasp the basics of tax planning.
International Tax Planning by Sergio André Rocha
This book discusses tax planning within a globalized framework.
Rocha examines issues related to the taxation of global activities, transfer pricing, strategies to prevent double taxation, and combating international tax evasion, providing a current view on the complexities of tax planning in a world that is becoming more interconnected.
Tax Law and Economic Analysis of Law by Paulo Caliendo.
This book offers a multidisciplinary perspective by blending tax principles with economic analysis tools in the field of law.
Caliendo shows how economic factors impact decisions on tax planning and provides a framework for assessing the effectiveness and legality of tax strategies considering transaction costs and incentives shaped by laws.
Tax Planning and Business Purpose by Luís Eduardo Schoueri
Schoueri delves into the exploration of the business objective as a legitimizing factor in tax planning. The research explores the integration of the business purpose concept in Brazilian legislation and evaluates its implementation by the administrative judiciary.
The author provides unbiased standards to assess whether a negotiating intent is present in corporate restructurings.
Tax Planning by Valter de Souza Lobato and José Antonino Marinho Neto
Lobato and Neto analyze tax planning in relation to Article 116 of the National Tax Code.
The article explores how tax authorities in Brazil have used the concept of law abuse to challenge questionable planning structures and provides suggestions to reduce risks.
This collection of works is valuable for lawyers aiming to specialize in tax planning, offering theoretical foundations and practical instructions for implementing efficient fiscal strategies in compliance with Brazilian laws.
Revamp your legal practice through strategic tax planning.
Tax planning is crucial for businesses and entrepreneurs looking to maximize their tax efficiency while remaining compliant with the law.
The tax attorney’s duties may involve:
- Ideal tax system definition.
- Defense against tax inspections;
- Recovery of mistakenly paid taxes;
- Effective planning to minimize estate taxes.
A well-organized tax planning can lead to reduced costs, improved financial predictability, and legal assurance for businesses and professionals.
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