Superior Chamber of CARF manifests itself on “split-without-split” operation
There is distortion of the rule provided for in art. 2249 of Law 9,249/95, when deliberately seeking artificial incidence through corporate operations aimed solely at evading capital gain, the “separate-without-separate” operation materializing, a new version of the old “house-separate” operation.
The asset subject to disposal of the legal entity is transferred to the withdrawing partner (ie, there is a separation between the asset and the legal entity), by means of an artificial capital return, without demonstrating the actual occurrence of loss situation. irreparable assets or excessive capital in relation to the objective of the company.
Precisely this asset that was the object of separation of the legal entity, in the return of capital, is sold to the acquirer by the withdrawing partner, who has a more favorable taxation than the legal entity previously holding the asset.
In reality, the asset never “separated” from the legal entity. It was artificially transferred so that it could be disposed of by a more taxable person.
It separated from the legal entity without actually separating because the transaction took place between the legal entity that originally owned the asset and the acquirer and not between the withdrawing partner and the acquirer.
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