In Buenos Aires on the fourth day of the month of December of 995, at 15:971 p.m., the members of the Tax Court of the Nation, Drs. Ricardo Xavier BASALDUA, Sergio BRODSKY, Rodolfo Héctor CAMBRA, Silvia A. CRESCIA, Gustavo A. KRAUSE MURGUIONDO, Carlos A. PORTA, Agustín TORRES, Jorge Celso SARLI, Susana Lía SILBERT, D. Paula WINKLER, met, with Dr. Elena Diana FERNANDEZ DE LA PUENTE as president, -Drs. Catalina GARCIA VIZCAINO and Graciela WURCEL are on leave (AA No. 973 and 7064 respectively)-, on the occasion of the call made in the case entitled "CARGILL SACI s/appeal", File No. No. 22.610-A, for the purpose of establishing legal doctrine in relation to the payment of the Action Fee, Law 23.871 - amended by Law XNUMX -, in the cases of appeals that end due to the plaintiff's withdrawal, prior to the response to the transfer of the appeal by the National Treasury. The act was opened:
Dr. Susana Lía Silbert said:
On the subject matter submitted to the plenary session, the undersigned has already issued a ruling in the case: "Neumáticos Mariani SA" File No. 7156-A dated 17/2/95.
On that occasion, it was held that since withdrawal was not provided for as a cause for reducing the amount of the performance fee - Law 22.610 as amended by Law 23.871 - the fee should be paid in full. The same had been resolved by this same Chamber F in re: "Salym" File 6556-A dated 9/10/91, confirmed by the Honorable National Chamber of Appeals in Federal Administrative Litigation, Chamber IV, on 14/5/93.
Article 1 of Law 22.610, as amended by Law 23.871, requires payment of the fee created for "Proceedings before the Tax Court." Article 2 of the same law specifically establishes two exceptions: 1) Persons who act for the benefit of litigating without costs and 2) the appeal for protection referred to in Articles 164 and 165 of Law 11.683, text ordered in 1978 and its amendments and correlatives of subsequent ordinances.
For its part, Article 5 of the same ordinance provides that when prior exceptions that put an end to the litigation are successful, the fee will be reduced by one third.
The criterion that was upheld and continues to be upheld is that, in accordance with the regulations outlined above, since neither an exception nor a reduction in the fee is expressly provided for in the event that the services of this Court are requested and the appeal is withdrawn, the entire fee must be paid even when said withdrawal is considered as such by a judgment issued prior to the fiscal representation contesting it.
To further substantiate this conclusion, it is considered illustrative to partially transcribe the ruling of the Honorable Chamber previously indicated. There it was stated: "As defined in the law, this so-called "action fee" has - given the jurisdictional nature of the body whose activity originates it - a close parallelism with the judicial fee currently regulated by law 23.898."
«Like the latter, the court fee is owed by the person who requests the services of the court by using its mechanism to obtain recognition of his claim. Thus, it has been held, with reference to the court fee, that it «must be paid for the sole fact of appealing to the court and initiating a court action, regardless of the fate of the petitioner's claim and regardless of its ulterior developments» (CNFed. Civ. and Com. Sala I, 30/11/79, «Rhodia Argentina Química y Textil c/Buque Bowrogh», JA 1980-III, p.589)».
«IV.- That this conclusion in no way affects the provision contained in article 3 of Law 22.610 -according to the text of Law 23.871- which establishes a particular method of staggered payment of the tax for certain cases of actions -the most common and specifically mentioned in Law 11.683- but without this implying exemption from other actions that individuals intend to initiate before the Tax Court, regardless of their success.»
It should be noted that, as already stated, the rate of action to which we have been referring taxes "the performance before the court" and that this cannot be understood in any other way than that the promotion of any appeal that sets in motion its jurisdictional activity (with the exceptions and reductions provided for in arts. 2 and 5 of law 22.610 amended by law 23.871) is subject to payment of the same in its entirety, so that "the ulterior developments" that may arise as a consequence of the process and/or the process and the action having been withdrawn are irrelevant. This is the doctrine that is also inferred without further difficulty from the judgment of the Honorable Chamber mentioned.
Based on the above, I vote for the following legal doctrine to be established: When the appeal concludes with a judgment that accepts the withdrawal of the same made by the plaintiff, even when said pronouncement is issued prior to the response of the fiscal representation, the appellant must pay the entire action fee, established in Law 22.610 as amended by Law 23.871.
Dr. Silvia A. Crescia and Dr. Ricardo Xavier Basaldúa said:
Who adhere to the preceding vote.
Dr. Rodolfo Hector Cambra said:
That in accordance with the terms of the call for a joint plenary session of the Tax and Customs Chambers, dated 3l.l.95, in file 7064-A "GARGILL SACI S/APELACION ANA", it is necessary to determine whether, in the cases of appeals that end due to the plaintiff's withdrawal prior to the National Treasury's response to the transfer of the appeal, the action fee (Law 22.610 amended by Law 23.871) must be paid by applying the 2% rate set as the total rate but reduced by one third (by extensive application of art. 5, paragraph 1 of said law), or whether the aforementioned rate must be applied simply and plainly without any reduction.
The undersigned, as he already stated when ruling -among other cases- in No. 6908-A "HUGHES TOOL CO SACIFI", understands that it is appropriate to rule on the first of the aforementioned positions. This is so because, taking into account that the brief provisions of the law in question do not expressly contemplate situations such as the one raised and -as regards the payment of the fee- refer to the general case (case with a definitive judgment on the merits of the issue) and -as an exception- only to the case in which prior exceptions succeed that put an end to the litigation, in order to resolve cases not contemplated, it must necessarily and firstly adhere to the spirit of the law, without prejudice to its harmony with logic and equity.
In the opinion of the undersigned, there is no doubt that the spirit of the imposition of the tax in question recognizes its basis in jurisdictional activity and in particular with special consideration -taking into account the aforementioned exception and the "reduction" established in this regard- to the extent and intensity of said activity. Thus, the indicated sole exception -which was foreseen with the aforementioned reduction- refers to a case of evident (as regards the logical foreseeability of the majority of possible cases) less jurisdictional activity both in its normal extent and in the normal intensity or depth of the work of the judges. Therefore, with much greater reason, and in the absence of other alternatives, said reduction should be applied to cases -such as the one in question- of evident even less jurisdictional activity in both referred senses.
This solution is also in harmony with elementary logic and, in particular, with equity; the latter because it would be - in the opinion of the undersigned - truly inequitable that someone who withdraws under the conditions set out in the call for a plenary session should pay the same rate of action as someone who causes the full activity derived from completing the process by developing all the stages in order to arrive at the final judgment on the merits of the matter and analyzing the issues of the dispute, and a higher rate than someone who - although with a result that demands less activity than that of the general case - nevertheless causes, without a doubt, greater activity than that resulting from the case brought to the plenary session.
Therefore, in my opinion, it is appropriate that in cases of appeals that end due to the plaintiff's withdrawal, prior to the response to the transfer of the appeal by the National Treasury, the rate of action should be applied with the general rate of 2% and with the reduction to one third by extensive application of the provisions of the first paragraph of article 5 of the law. SO I VOTE.
Drs. Elena D. Fernandez de la Puente and Jorge Celso Sarli said:
Who adhere to Dr. Cambra's vote.
Dr. D. Paula Winkler said:
I.- That this plenary meeting has been called for the purpose of establishing legal doctrine in relation to the issue of payment of the performance fee - Law 22.610, amended by Law 23.871 - in the cases of appeals that end due to the withdrawal of the plaintiff, prior to the response to the transfer of the appeal.
That first of all it should be noted, as highlighted in her dissenting vote to the call formalized by the majority of this Court by Dr. García Vizcaíno, that the resolutions of Chambers F and G issued in re: «Neumáticos Mariani SA» dated 17.2.95 and «Hughes Tool Company SACIFI» dated 14.9.93, respectively, are based on factual circumstances different from those that inform the matter being processed in the «Cargill SA» case.
That, however, for the reasons I will explain below, I do not find any obstacle to establishing legal doctrine given the breadth with which the debate was called.
II.- That, like the court fee – Law 23.898 (and amendments) – the fee for actions before the National Tax Court must be paid for the sole fact of appealing to this body and promoting an action that gives rise to the provision of the justice service.
As far as I am concerned, it is worth remembering that art. 3º in fine textually provides: «The remaining fifty percent (50%) will be paid plus the corresponding update within five (5) days of notification of the judgment contrary to the claim of the plaintiff, regardless of whether said judgment is accepted or appealed». (The underlining is mine). On the other hand, inc. c) of art. 2º, when referring to the exemption from fine, provides for the payment of the fee «in case of final conviction».
From this wording it is possible to infer, in the opinion of the undersigned, that the intention of the legislator was not to formulate any other distinction than that contained in article 5 (preliminary exceptions that put an end to the procedure).
III.- It is true that from a procedural point of view the institutes of withdrawal of the action and of the right are different.
That the maintenance of this distinction in the matter now to be resolved would be possible if the different fate of the petitioner's claim is taken into account in each case. Thus, the jurisdictional activity would obviously be greater in the event of resolving the substance of the case - whether it is a tax or criminal matter. From there, the possible reasoning would be to reduce the rate in cases of lesser activity of the agency, e.g. in the case now in question, due to the mere circumstance of the existence of an early resolution and the difference between the rate to be paid in the cases of resolutions approving withdrawals of actions and rights, due to the not inconsiderable fact that in the first case, and dealing with tax matters, the interested party may initiate a new process, with the obvious limitations of prescription and that, in the second, since the jurisdictional body is not necessarily "linked" to the withdrawal, it will be necessary for the latter to examine, for example, whether or not it is an available right.
That on this point the undersigned shares the doctrine established by the Fourth Chamber of the Court of Appeal, which considers that the fee for actions before the National Tax Court "must be paid for the sole fact of appealing to the jurisdictional body and promoting a judicial action, regardless of the fate of the petitioner's claim and regardless of its ulterior developments." (V.res. of 14.5.93 in re: "Sanym SA" and its citations).
I agree with the above precedent to the extent that, in my opinion, it arises from the wording of the law itself. In effect, the only exemptions contemplated for the payment of the fee are those contemplated in art. 2. Art. 5 establishes a reduction that has no precedent, it is true, in the law on court fees. However, it does so to refer exclusively to the exceptions that put an end to the procedure and, in tax matters, despite the respectable contrary position established in their resolutions by other colleagues, the extensive application of a reduction in the payment of a tax does not appear to be possible, even when the reduction that is intended to be applied, whatever it may be, is for reasons of equity or resorting to reasonableness as a guideline in the task of interpretation.
To this end, I hereby state that I have reached this conclusion on this occasion by modifying the criteria adopted in the resolution of Chamber E, issued on 21.11.94 in re: «TEC – MA – SA SA» in which it was established, in a case of withdrawal (although there had already been a response to the transfer), that the rate to be paid was 1%.
That I arrived at that conclusion at the time by literal interpretation of art. 3 of the law in question. However, a new examination of the issue allows us to review the criterion, taking into account that the interpretation of laws must be practiced according to the general context in which they were created and in accordance with the purposes that inform them (SCJN «Fallos», 264: 152; 265: 256) and that «(...) it is necessary to give full effect to the intention of the legislator, taking into account that inconsistency or lack of foresight is not assumed in the latter and for this reason it is recognized as a principle that laws must always be interpreted avoiding giving them a meaning that puts their provisions in conflict in order to adopt as true the one that reconciles them» (id. June 26-984 in re: «Widman, Juan c/Segovia, José M., among many others).
IV.- That, when the law refers to the rate to be paid in terms of fines, it only refers to the existence of a "final conviction."
When referring to other taxable cases, it requires the payment of the rate "in fifty percent (50%) at the time of filing the appeal of a tax determination or the appeal or claim for repetition", while the remaining fifty percent is required to be paid "within five (5) days of notification of the judgment contrary to the claim of the plaintiff, regardless of whether said judgment is accepted or appealed." (The underlining is mine again)
It can be deduced from this that the intention of the legislator was to tax judicial proceedings regardless of the taxpayer's will to appeal or not the judgment of this Court and the outcome of said proceedings. Therefore, in the opinion of the undersigned, the appellant's withdrawal - regardless of whether it is of the appeal or of the right - cannot have any other treatment than that provided for in the aforementioned art. 3, when it concerns tax matters, and that of inc. c) in fine of art. 2, when what is withdrawn is the appeal filed against a customs or tax fine.
This Judge considers that with the withdrawal of the criminal matter, as the fine is approved, the Court's approval decision has effects that are similar to a "final sentence", although substantively it cannot be said that said decision is. The assimilation results from following the same interpretative line as up to now.
It is true that some objection could be raised if we affirmed that the principle I outlined gives way to the reduction provided for in Article 5, which has no precedent in the law on court fees. However, for the reasons I have been explaining, this reduction, which implies a reduction in the payment of the tax, cannot, in my opinion, be applied by extension or on the basis of the guarantee of the reasonableness of the laws enshrined in the Constitution, since this is a task reserved to the legislative power.
Accordingly, I vote to establish the following legal doctrine: in the event of withdrawal by the plaintiff prior to the response to the transfer of the appeal by the National Treasury, whether it is a withdrawal of appeals in which tax or criminal matters are discussed, the plaintiff must pay the 2% referred to in art. 1 of law 22.610 and as amended in the procedural opportunities arising from art. 3 and inc. c) of art. 2 of the same.
Drs. Agustín Torres and Carlos A. Porta said:
That this Joint Plenary Agreement has been called to establish the legal doctrine regarding the rate that must be applied to settle the Performance Fee established by Law 22.610 - modified by Law 23.871 - in the cases in which the process concludes by virtue of the withdrawal of the plaintiff prior to the response to the transfer by the national treasury.
That art. 22.6 of law 0 establishes that the proceedings brought before this Tax Court of the Nation are subject to a rate of 2% on the total amount in question, except for fines (art. 2, inc. c), a rate that in accordance with art. 3 is paid in installments: 50% when the appeal or claim is filed and the remaining 50% within 5 days of notification of the conviction judgment. If the judgment is impedimental or decides a prior issue that ends the litigation, and the national treasury loses, the rate paid must be fully reimbursed to the plaintiff in accordance with the provisions of art. 6 of the law, the clarity of which cannot be affected by the improper extension of the first paragraph of its art. 5. If the preliminary question that ends the litigation is that of jurisdiction or another question raised by the national treasury is accepted (lack of legal standing, prescription in repetition, etc.), the assumption of art. 5 of the law applies, and the rate must be reduced to one third of 2%, that is, 0,66%. On the other hand, if the controversy is decided by virtue of the national treasury's acquiescence accepted by the opposing party, it is clear from the systematic game of the clauses of the law that the rate returned to the plaintiff is the one paid by it, that is, 50%. And symmetrically, if the process ends abnormally due to the withdrawal of the plaintiff, accepted by the national treasury, the rate proportional to the justice service enjoyed is 1% paid at the time of articulating the procedural remedy - that is, XNUMX% - regardless of whether the treasury has responded or not to the appeal, since it is not due to this circumstance or to the procedural deployment that the opposing party may make, but rather by the sole fact of having requested the services of the jurisdictional body.
It is therefore voted that the rate of action of Law 22.610, in cases of withdrawal by the plaintiff prior to the response to the appeal by the national treasury, should be settled at the rate of XNUMX%.
Dr. Sergio Brodsky said:
That agrees with Dr. Cambra's vote.
In accordance with the foregoing Agreement, the Members by majority AGREED to establish the following legal doctrine: "In cases of appeals that end due to the plaintiff's withdrawal, prior to the response to the transfer of the appeal to the National Treasury, it is appropriate to apply the action fee, law 22.610 and amendments, with the general rate of 2% and with the reduction to one third by extensive application of the provisions of the first paragraph of article 5 of the aforementioned law." With this the act ended, at four thirty in the afternoon.
Please check in and return the cars to the Room of Origin.
