A formação de holding como instrumento sucessório, patrimonial e tributário

Abstract

The present study deals with the holding company as an alternative for succession planning, aiming to understand the dynamics and its objectives, especially with regard to the protection of family assets, adapting estate planning and reducing costs and expenses, specifying tax savings. This research is justified in tracing a profile of the need for succession planning and the numerous risks experienced, demonstrating that business/succession planning, constituting a family holding, brings benefits in the family, tax and/or administrative areas. The benefits do not stagnate only in families and their assets; its premise is the economic and social role, guaranteeing the stability and existence of family businesses, ensuring economic development, applying rules of corporate law in socio-family relationships. The central question is how can the creation of a holding company in a family business be an option to solve problems of a succession nature and ease the tax burden? It is hypothesized that the use of corporate governance through corporate composition is the means of creating an organization for companies, thus forming mechanisms to provide transparency and lawfulness in actions, inferences in management National Tax Code. The general goal will be the approach of the legal and governance nature of a holding company, the protection of family assets, through the benefits brought by the adequate practice in the elaboration of corporate structures to organize, protect and guarantee the control, administration and continuity of the businesses and assets , in a lawful and nondefense manner, also bringing, as specific objectives, the emphasis on the challenges of the constitution of the family holding company; demonstration of the benefits and risks of business activity; identification of the social and professional aspects of the prior structuring of a family holding company as a succession planning mechanism; and preventive assessment of the benefits of succession planning, through governance mechanisms. Operational controls and governance practices will also be analysed, as well as the criteria brought by the General Anti-Avoidance Rule, namely, the holders of the right to negotiate in conjunction with private autonomy and freedom, in order to achieve tax savings, provided that through lawful acts the absence of dissimulation of the triggering event and the need for a business purpose in the operations carried out, with the aim of ensuring that the family holding company constitutes an effective and safe tax planning mechanism and does not preclude assessments by the tax authority of the country. The results obtained from this research were of paramount importance because, through the proper constitution of family holdings, it will bring benefits in the family, tax and/or administrative areas, solving problems of a succession nature and easing the tax burden. The applied methodology was deductive, starting from concepts and categories for the specific treatment of the research objective. The techniques applied in the research were bibliographic review, national and foreign, as well as data collection and documents submitted to theoretical analysis. The research has as its theoretical delivery the creation of a booklet with the purpose of resolving or minimizing doubts about issues related to the formation of a holding company as a succession, patrimonial and tax instrument.