In Buenos Aires, on the 13th day of October 1999, the following members of the Tax Court of the Nation, Drs. Elena D. Fernandez de la Puente, Jorge C. Sarli, Rodolfo H. Cambra, Susana Lia Silbert, Silvia A. Crescia, Ricardo X. Basaldua, Gustavo A. Krause Murguiondo, Catalina Garcia Vizcaino, Mrs. Paula Winkler, Carlos A. Porta, Sergio P. Brodsky, Jose E. Bosco, Ernesto C. Celdeiro, Ignacio J. Buitrago, Maria Isabel Sirito, Graciela L. T. de Wurcel, Esteban Juan Urresti, Jose D. Litvak, met with Dr. Agustin Torres as president, on the occasion of the call made on page XNUMX of the proceedings entitled:
CARGILL SACI v. DIRECCION GENERAL DE ADUANAS s/ resource on appeal File No. 10.386-A, in order to determine whether or not it is appropriate to review the doctrine established in the Joint Plenary Agreement in re Establecimientos Argentinos de Bovril Limitada s/ resource for delay -sales tax - dated March 25, 1975, which established that The doctrine established by the court in Plenary does not bind the judges in the presence of a contrary jurisprudential precedent of the Supreme Court of Justice, without requiring, for the application of the latter by the Members, a new plenary decision that, recognizing the contrast between one and the other legal interpretation, nullifies the one previously formulated by the body.
The ceremony opened with Dr. Fernandez de la Puente, Dr. Sarli and Dr. Cambra saying:
That it should be noted first of all that this Chamber G, on August 18 of this year, elevated to plenary session the present case No. 10.386-A, entitled Cargill SA v. DGA s/ appeal in order to review the plenary doctrine issued in the case YPF v. ANA s/ appeal dated August 23, 1995, in light of the judgment of the Supreme Court of Justice of the Nation in re Bunge y Born Comercial SA of June 11, 1998, by which said Court held that the criterion established by the aforementioned plenary judgment was not applicable, and that it should be analyzed whether the violation of art. 954, paragraph c) of the Customs Code, imputed to the plaintiff, had been configured in those proceedings.
That in the aforementioned elevatoria it was considered that the plenary doctrine established by this Court in the case Establecimientos Argentinos Bovril Limitada s/ resource for delay - sales tax in the judgment of March 25, 1975 was not applicable because, at the date of the same, the text ordered in 1974 of Law 11.683 was in force, which, in its article 142 established, on an obligatory basis, that the Court must apply the jurisprudence of the Supreme Court of Justice of the Nation that had declared the unconstitutionality of tax or customs regulations or had established criteria for the interpretation or application of the same, while at present the application by this Court of the jurisprudence of the Supreme Court of Justice of the Nation is merely optional, as provided for in art. 185 of Law 11.683, text ordered in 1998.
That the Vice President of this Court rejected the raised elevatoria - without taking into account the provisions of art. 151, 7th paragraph of law 11.683 (to1998) - and referred the proceedings to the President in order to determine whether what was requested by this Chamber G implied a request for review of the plenary session of Establecimientos Argentinos Bovril Limitada, who, in turn, called a joint plenary session in order to determine whether or not it is appropriate to review the cited legal doctrine.
That the undersigned consider that the legal doctrine established in the plenary session of Establecimientos Argentinos Bovril Ltda. has lost validity as of the reform introduced to law 11.683 by law 21.858, through which the provisions of the then article 142 of the text ordered in the year 1974 were left without effect regarding the aforementioned obligation to apply the jurisprudence of the Supreme Court, and it was arranged that this Court may follow the interpretation in which it has declared the unconstitutionality of the tax or customs laws and their regulations, a principle that remains in force at present (see art. 185 of the law according to its text ordered in the year 1998). It is for this reason that the plenary doctrine whose possible revision has been submitted to the knowledge of this Court in Plenary, is not applicable since the sanction of law 21.858 and until the date.
That, notwithstanding the foregoing, the issue that has been submitted to the plenary session – different from the one that was the subject of elevatoria by this Chamber G – obliges the undersigned to pronounce themselves in the sense that said doctrine must be reviewed in order to declare that it has become void as a consequence of the sanction of law 21.858, for which reason we consider that, in the event that a plenary session of this Court has established a doctrine that subsequently turns out to be controversial by a sentence of the Supreme Court of Justice of the Nation, the same must be submitted to a new plenary session in order to determine whether or not said jurisprudence must be reviewed, as expressly established by the 7th paragraph of article 151 of law 11.683 (to1998)
That this is so because the 3rd Paragraph of the aforementioned rule provides for the mandatory nature of the interpretation of the law established by plenary rulings, and obviously this Court cannot - not even by means of a plenary - modify the express text of a legal rule in order to authorize its members to choose between applying a plenary or following the criteria established by the Supreme Court of Justice of the Nation, whose doctrine is of merely optional application for this Court and is restricted to cases in which the unconstitutionality of a law or its regulations has been declared.
That, based on the grounds set forth above, we vote to review the doctrine of the plenary session in the case Establecimientos Argentinos Bovril Limitada in order to declare that it ceased to be applicable as of the validity of Law 21.858. WE SO VOTE.
Dr. García Vizcaíno said:
While it is true that, as pointed out by the distinguished members of Chamber G on pages 44 of these proceedings, art. 151 of Law 11.683 (revised in 1998 and amended) establishes that all chambers of this Court must follow the legal doctrine established in the plenary sessions, uniformly and obligatorily, it is also true that the Supreme Court of Justice of the Nation has held that its jurisprudence is obligatory with respect to all lower courts (especially when it has been invoked by the parties), for the purposes of adequately safeguarding legal unity in the interpretation inherent in the principle enshrined in art. 116 of the CN, having qualified itself as the supreme interpreter of the National Constitution and of the laws enacted as a consequence thereof, such as, e.g., Law 22.415 (Customs Code).
That, in effect, although the Supreme Court only decides in the specific proceedings submitted to it, and its rulings are not binding for similar cases, the lower court judges have the duty to conform their decisions to those [. . .]. From this doctrine, and from that of , 212-51 and 160, the consequence is that the judgments of the lower courts that depart from the precedents of the Court without providing new arguments to justify modifying the position taken by the court, in its capacity as supreme interpreter of the national Constitution and the laws enacted as a result thereof, are unfounded [. . .], especially in cases such as the present one, in which said position has been expressly invoked by the appellant (CS, Incident of prescription Cerámica San Lorenzo, of 4/7/85, Fallos, 307-1094 and its citations). This is so because, by provision of the national Constitution and the corresponding regulatory law, the Supreme Court has definitive authority for justice throughout the Republic (art. 100, CN [currently, art. 116, according to the reform of 1994], and art. 14, law 48, Fallos, 212-51).
In addition to the above, the Supreme Court has recently stated forcefully that ignorance of the guidelines it has given in its pronouncements is sufficient to disqualify the judgments issued by lower courts, since the absence of arguments that allow determining the criteria followed to disregard the jurisprudential doctrine of the Court applicable to the case implies a decisive lack of foundation that vitiates the judgment as a jurisdictional act (García, Sixto E, 30/6/99; Criminal Jurisprudence Supplement of the Law, 27/9/99, p. 30).
I consider that the National Tax Court is included within the jurisdictional lower courts, for which reason I believe that it is not appropriate to review the legal doctrine established on 25/3/75 in re Establecimientos Argentinos Bovril Limitada s/recurso por delación- tribución a las ventas. Thus I vote.
Dr. Torres said:
That this Agreement has been called for the purpose of preliminarily analyzing whether or not it is appropriate to review the mandatory interpretation that this Court established in the Plenary Session held on March 25, 1975 in the case Establecimientos Argentinos de Bovril Ltda. s/appeal for delay in sales tax.
That in that Plenary it was established that: The doctrine established by the Court in Plenary does not oblige the judges in the presence of a jurisprudential precedent contrary to the Supreme Court of Justice, without requiring, for the application of the latter by the Members, a new plenary decision that, recognizing the contrast between one and another legal interpretation, renders without effect the one that the body had previously formulated.
That Chamber G in its Updating Decision understands that this legal doctrine was a consequence of the text ordered in 1974 of Law 11.683, which in its art. 142 established, in an obligatory manner, that the Court must apply the jurisprudence of the Supreme Court of Justice of the Nation if it had declared the unconstitutionality of the tax and customs regulations or established criteria for their interpretation.
However, the reading of the votes of the members who participated in the Agreement does not lead to that assertion. In effect, the previous speaker, Dr. Alvaro J. Marí Arriaga, considered that the legal doctrine of the High Court was binding on the members above any other doctrine issued by the Court in Plenary Session, based on two orders of considerations: the first, based on the vertical distribution of our institutional regime, in which the Supreme Court of Justice acts as the ultimate body in the system of challenges; the second, located in that a contrary interpretation would lead to affecting the rule of the then art. 142. That is, the restriction of that article was used only as a secondary basis. This reasoning was followed by Dr. Mordeglia. And I remember, in passing, that the person who raised the case and did not attend the Agreement was not in favor of a contrary solution, since he maintained that the remedy of the unification of the legal doctrine should be used in a limited way. The distinguished tax expert Francisco Martínez warned, with the clear words of Carnelutti, that the debate between the advantages and disadvantages of the uniformity of jurisprudence showed the danger that lies in lulling, if not extinguishing, the continuous inquiry of the Judges who day after day, through the paths of interpretation, refine the current regulations, making them always more suitable for their function (Study of Tax Law, Modern Accounting, Bs. As., 1973, page 218).
Dr. Beatríz González de Rechter agreed with Dr. Marí Arriaga and after considering that in art. 142 of the procedural law according to the 1974 decree the phrase "may" which was brought from the previous text had been replaced by "shall", she understood that the doctrine emanating from the Highest Court should prevail... due to basic considerations that address not only the hierarchy of the bodies from which the contradictory doctrines emanate - an extreme that the judge cannot ignore within the Argentine institutional system - but also because of the circumstance that the legal doctrine established by the Court in Plenary Session and applied by way of judgment by any of the judges that comprise it, is susceptible to further review by the Judicial Branch, within which the Supreme Court of Justice of the Nation is the Court of closure.
Dr. Sara María Dichiara also voted in the same direction and did so with these words: …it is easy to arrive at this conclusion if one considers the hierarchy within our institutional system of the bodies from which the pronouncements in question emanate and the circumstance that the legal doctrine established by this Tax Court in Plenary Session and applied by a member thereof is susceptible to review by the Judicial Branch, within which the Supreme Court of Justice of the Nation is its last instance….
That the rigid nature of the jurisdictional restriction was modified by the text of art. 167 of the law according to the to in 1978, -currently art. 185 of the to in 1998- and the scope of freedom that it enshrined by establishing that the interpretation made by the Supreme Court of Justice of the Nation may be followed (which entails the possibility of not following it and, obviously, that of maintaining the legal doctrine of this Body), is also reflected in the legal doctrine established in the Plenary whose review gives rise to this Agreement. The arguments that the Judges who preceded us gave on that occasion are valid today and the rule of art. 185 must be combined with that of 151 in the way that the legal doctrine did with respect to which I reject its review. That is how I vote.
Drs. Paula Winkler and Gustavo A. Krause Murguiondo said:
Who adhere to the vote of Dr. Torres.
Dr. Sirito said:
Considering that the rule of Law No. 11683, the interpretation of which gave rise to the plenary agreement originating in the Establecimientos Argentinos Bobril Limitada case held on March 25, 1975, has been modified, I deem it necessary - in consideration of the different and expanded composition of the Tax Court - to review the legal doctrine established in that plenary.
Dr. Graciela Wurcel said:
Dr. Jose D. Litvak said:
Drs. Susana L. Silbert, José E. Bosco, Carlos A. Porta, Ignacio J. Buitrago, Ernesto C. Celdeiro, Sergio P Brodsky, Esteban Urresti, Silvia A. Crescia, Ricardo Xavier Basaldua said: that it is not appropriate to review the legal doctrine established in the Joint Plenary Agreement in re Argentine Establishments of Bovril Limitada s/ appeal for delay - sales tax - dated March 25, 1975.
In accordance with the above vote, by majority it is RESOLVED: it is not appropriate to review the legal doctrine established in the Joint Plenary Agreement in re Argentine Establishments of Bovril Limitada/ appeal for delay - sales tax - of March 25, 1975.
