The paper examines the question of the limits of tax planning and its relation with the legal concept of sham. The objective is to present the doctrinal controversies about the concept of sham, and to verify if brazilian courts adopt the restrictive conception of sham (which lies upon an isolated analysis of each transaction and tries to identify the real will of the parties) or the broader conception of sham, informed by economic, operational and corporation aspects which go beyond the formal and isolated analysis of each one of the transactions embedded in complex tax planning. We have examined decisions from Tax Administrative Federal Court, Judicial Federal court of 4th Region and Supreme Judicial Court concerning Rexnord and Josapar cases, which can be seen as paradigmatic ones. The conclusion is that courts have been showing a tendency to apply a broader conception of sham, and to deny protection to tax schemes based on artificial transactions, with no economic or business rationale.
Tax planning; limits; sham; court decisions; Supreme Judicial Court