A Income Inclusion Rule das Regras-Modelo GloBE da OCDE: análise à luz do conceito de renda, do princípio da igualdade, e do princípio da capacidade contributiva presentes no sistema tributário brasileiro

Abstract

The adoption of the GloBE Rules, which were designed under Pillar 2 of the OECD/G20 BEPS Project, with the aim of establishing a minimum level of corporate income taxation of 15% in each jurisdiction where the Multinational Group operates, is already a reality in the international scenario. The methodology proposed by the GloBE Rules involves the collection of a top-up tax through different mechanisms – in this dissertation, we focused on the Income Inclusion Rule (“IIR”). It should be noted that, although Brazil has not yet implemented the IIR, Law No. 15,079/2024 provides that a proposal on the subject shall be submitted during the first half of 2025. In this context, the scope of this dissertation is to analyze whether the introduction of the IIR as an Income Tax in Brazil would be in line with the concept of income and the principles of equality and ability to pay provided for in the Brazilian legal system. In brief, the IIR allows the Top-up Tax arising from income earned by investees in another jurisdiction to be collected in the residence jurisdiction of the parent entity. Although this system is, to a certain extent, similar to the CFC Rules and the Brazilian TBU Rules, we concluded that they are distinct mechanisms, since the IIR does not establish the inclusion of income generated abroad in the parent entity’s basis, but rather the establish allocation of the Top-up Tax. In order to advance the analyses on the compatibility of the IIR with the concept of income, we adopted two different references, namely (i) the equity increase of the Brazilian parent entity considered as a separate entity; or (ii) the equity increase of the MNE Group and, consequently, of the Brazilian entity as a member of it. We concluded that the second reference would be the most appropriate and that, while it is our opinion that there is no conflict with the provisions of Art. 153, III, of the Brazilian Federal Constitution, on the other hand, we understand that it would be appropriate to adjust Articles 43, 44 and 45 of the National Tax Code. Finally, we analyzed whether the criteria relating to the subjective scope of the IIR of the GloBE Model Rules vis-à-vis the principles of equality and ability to pay, concluding that: (i) in relation to the criterion of the Multinational Group (with presence in more than one jurisdiction), we propose to broaden it to also include Groups formed exclusively by Brazilian entities; (ii) regarding the criterion of annual revenue equal to or greater than EUR 750 MM, although we understand that the ideal path would be a constitutional amendment, we do not rule out the possibility of giving a new interpretation to the constitutional principles, in view of the current reality in which Multinational Groups operate in an increasingly globalized and digitalized economy.