The national Government, based on the need to seek fiscal balance in its accounts, has ordered, by Decree 793/18, the imposition of a "export duty"for exports for consumption of all goods included in the tariff items of the Common Nomenclature of Mercosur (NCM).
Although the Customs Code (art. 755) would enable the PEN to regulate – taxing/de-taxing – this type of tax that comes from the National Constitution itself in its article 4 and customs laws – Customs Code – it could certainly be considered that there would be two vices in the regulation published in the Official Gazette on 4/09/2018, which would lead us to find ourselves before a “tax”, which in its imposition would be outside the law at the time of the different “taxable events” – export destinations – being established.
These issues can be differentiated into two elements
El first point, referred to article 1 of decree 793/18, establishes a “12% export duty” for all export operations for consumption. This leads to considering that each “taxable event” that is established when a transaction is made official “final export destination” will generate a tax imposition from this decree -793/18.
Now, Argentina has been part of a common market for several decades, which was born with the International Agreement known as Asunción, which created the so-called MECORSUR regional customs area. This supra-legal framework is a norm with constitutional roots and therefore must be respected by the National State when imposing provisions, especially tax provisions. In itself, any tax imposition within this customs area implies an impact on the Asunción Agreement and limits the powers of the PEN by art. 756 of the Customs Code, which clearly provides that "The powers granted in article 755, section 1, must be exercised in compliance with current international agreements".
In this case, a distinction should have been made between “intra-zone” and “extra-zone” exports; that is, the extraction of goods that are made outside the customs territory with destination to the countries that make up MERCOSUR, from those exports that are destined to other nations. Precisely so as not to fall into a situation outside of what is mandated by the current international agreement. On the contrary, the guiding principle of priority of the norms, which clearly governs from the National Constitution itself – art. 31 –, is affected. Because the international agreement itself establishes the absence of tax imposition within the scope of MERCOSUR and as has been pointed out, the Customs Code itself limits the PEN in its powers that support the issuance of this decree – art. 755 of the CA –
Although there is a ruling by the Supreme Court of Justice of the Nation regarding this issue, it is certainly the opinion of the undersigned that this is an issue that should be reversed in terms of what was established by the high court and this government should have known how to differentiate these legal aspects that make up the much needed "legal security" in foreign trade matters. Making clear the importance and respect that the Government of Engineer Macri has known how to give to MERCOSUR since the beginning of his administration.
El second point This results in the clear imposition of a new type of scheme to apply the so-called "export duty", which is established in the art. 2 of the Decree 793 / 18, which establishes that 12% “cannot exceed $3 or $4 for each US Dollar of the taxable value or the official FOB price, as appropriate in the different cases it imposes” – making a variation in its application depending on the merchandise –
This way of imposing the application of this tax scheme introduces a new mechanism that is called “export duty”. But certainly, its way of being executed would give rise to “a new tax”. Since using a “taxable event” that is the export for consumption and a fixed amount, it denatures the export right itself. Conceiving a new specific application with tax rank. Such schematization leads to decree 793/18 giving rise to a new tax and consequently, based on art. 4; 52; 75, of the National Constitution, which clearly define the absolute and non-delegable power of the Legislative Power to establish taxes, a vice based on the lack of legitimacy to establish this tax scheme would be evident.
In addition, although the Customs Code prescribes the export duty as “ad valorem” and also “specific”, that is, the application of an export duty aligned to a unit of measurement may be considered adjusted, the Customs Code certainly indicates that this type of export duty must be imposed by law. This is expressly stated in art. 754 of the normative complex indicated here. Giving even more reason to believe that this form of imposition would not correspond to the PEN, being an attribution of the National Congress.
In this sense, the provisions introduced by the decree of the National Executive Branch published in the Official Gazette dated September 4, 2018 on tax matters, have a legal defect. Considering that, at the time of its application, it would make it possible to be faced with a norm that is far removed from the constitutional principles governing tax matters, ergo, unconstitutional.
Possibility of curing vices
However, no one is unaware of the need that Argentina is going through and the duty that we all can collaborate from our sphere to resolve the issues that have arisen for decades due to the absence of a “fiscal balance”.
In this collaborative spirit and without prejudice to the sound legal criticism of opinion that is being tested; certainly, also from a technical legal aspect, We believe that this can be corrected with the regulation of decree 793/18; imposing on the one hand, the clarification that the export right of art. 1 of decree 793/18 is for extra-zone operations and also, to provide that this limitation that is desired to be implemented in art. 2 of decree 793/18, may act as an automatic refund, in order to avoid disputes of seeing a latent defect in its imposition that generates legal questions at the time of its application.
By: Dr. Guillermo Felipe Coronel
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
