Tributação dos lucros das empresas transnacionais no contexto dos regimes preferenciais de propriedade intelectual: princípio da substância e o nexus approach

Abstract

The title of the research synthesizes its object: the income taxation of transnational companies in preferential regimes of intellectual property, with focus on the substance principle in the nexus approach. Fundamentally, the orientations of the Action 5 of OECD’s Project BEPS, which demands the substance requirements in the institution of preferential taxation regimes benefitting IP income, obtained by transnational companies in their related party transactions – through an approach which requires the nexus between the benefited income and the relevant subjacent activities –, were analyzed and used as a source of interpretation in the appreciation of preferential regimes destined to the inputs and outputs of technological innovation selected for testing. Other main and secondary factors of the guidelines, including economic ones, were considered in the testing of regimes, as to their being potentially or totally harmful to fair taxation. The minimal content of constitutional protection conferred to research, technological development and the creation, absorption, diffusion and transfer of technology – rooted in the Brazilian state’s commitment to technological progress, innovation and the development of the national market in its social conception – guided the reflections and conclusions of the investigation. In order to achieve the stated goal, the study embarked in conceptual and principiologic aspects of technological innovation and the protection of intellectual property. Recent issues of the relationship, in the importation and exportation of technology, between developed countries and countries in development, and between the latter and big corporations, as well as the tax planning conceived by these corporations, with the goal of allocating IP in countries with low or zero taxation and/or an IP preferential regime, have also engendered the reasoning. At the end, after a reflection on the efficiency of Brazilian preferential tax regimes in creating innovation, the studies have led to an inevitable conclusion. There is an evident gap in the public policies extrafiscal of incentives to the private sector which allow the formation and consolidation of disruptive innovation, due to the near absence of integration among preferential regimes of research and development (front end), whose activities are extremely wide, and extrafiscal policies destined to R&D results, reflected in the creation, absorption, diffusion and transfer of technology.