Introduction and Historical Review
National legislation, through the Customs Code, imposes taxes that the Code itself calls “duties” on imports and exports for consumption.
This has constitutional support, since the National Constitution (NC) refers to them, in art. 4, as tools to support the National Treasury. Although the history surrounding “export duties” is well known.
In the original text of 1853 (in whose Convention Buenos Aires was absent) the right of export was expressly determined as a means of recourse for the National Treasury. But the separation of Buenos Aires lasted until the battle of Cepeda in 1859 with the triumph of the confederate forces over Buenos Aires, signing the Pact of San José de Flores and, consequently, a new Constituent Convention was agreed with the participation of Buenos Aires. Let us remember that said province until then, gathered for itself all the customs resources; but now it had to give them up for the benefit of the Nation. When the Convention met in 1860 and due to pressure from Buenos Aires (which would no longer collect customs taxes) it was proposed to eliminate the export duties from the constitutional text. However, and given that a period of five years was granted for Buenos Aires to contribute its resources to the Nation and the latter to contribute to the province what it would no longer collect, said tax would remain in force until 1865, although it was finally decided to extend it until 1866.
However, a historic event would change the course of what was planned: the war against Paraguay. The nation needed all possible resources and there was no way to replace income to the public coffers in the midst of a war. Thus, the Convention was convened in 1866 but with the sole objective of eliminating the term that had been previously imposed on the validity of export duties until 1866, achieving this goal with a narrow vote of 22 in favor and 19 against. In this way, the time limit up to which export duties would be collected was removed from the Constitution; and thus they continue in force. Perhaps the history of such taxes would have been different had the war of the triple alliance not intervened.
Returning to the constitutional regulations, art. 75 states that it is the power of the National Congress to “legislate on customs matters” and “establish import and export duties.” This implies, among other things, that for the original constituents of 1853 and those of 1994, these are taxes, without a doubt.
Doctrine
What has the most prominent doctrine said about this? Starting with Juan Bautista Alberdi himself, he mentions it, emphasizing that “Tolls are duties or taxes that may be considered accessories to customs duties…”. (Alberdi, Juan B., “Principles and Rules according to which resources must be organized for the formation of the National Treasury”, The Economic and Tax System of the Argentine Confederation, third part, chapter III, item VI, El Foro Bookstore, Buenos Aires, p. 209 et seq.)
For his part, Joaquin V Gonzalez indicated “The Customs established in the Constitution form a system that shares the political, economic and financial characteristics, because they are an element of union and equality between the provinces, and the safest and most abundant source of the national treasury. (…) In articles 4, 9 and 67, its fiscal character is defined as an instrument of income. It follows, therefore: 1) that the Customs are national and external, with the Provincial Customs being abolished and prohibited; 2) that the Customs is a right or a tax and not a direct means of protection, much less of prohibition. Its purpose is to collect import and export rights (…) The Customs tax is a limitation of the constitutional guarantee of entering and leaving Argentine territory and of the freedom of trade and navigation in general, in return for the security and benefits received therein. For this purpose, Customs is not only a means of collection, but one of the most important attributes of national sovereignty (…) Everything related to Customs legislation, the establishment of duties, the setting of tariffs and other remunerative taxes, derived from the services that the Nation provides through them, is the exclusive power of Congress.¨(González, Joaquín V., Manual of the Argentine Constitution 1853/1860, Estrada, Buenos Aires, 1897 (ed. 1983), p. 426.)
More recently, Quiroga Lavié determines on import and export taxes that “They are the only ones granted exclusively to the federal State, which implies a concession of a limited and strict nature (F. 307: 360 and 374) The collection of these taxes is not part of the federal revenue sharing fund (…) The amount of customs taxes cannot be deemed unconstitutional due to their magnitude, because it will be a matter of the State's economic policy to protect certain national production against the low value of foreign products” (Quiroga Lavié, Humberto, Constitución de la Nación Argentina Comentada, Zavalía, Buenos Aires, 1996-2000, p. 366.)
Giuliani Fonrouge considers that “Export withholdings are part of the category of so-called 'customs taxes' or 'customs duties', which have been defined as those belonging to the National State to the exclusion of any other authority, pursuant to the provisions of arts. 4, 9, 75, inc. 1, CN, and which consist of taxes on the import or export of goods or products” (Giuliani Fonrouge, Carlos M., Derecho Financiero, Vol. II, 9th ed., updated by Navarrine Susana C. and Asorey, Rubén O., La Ley, Buenos Aires, 2005, p. 766)
That being said, articles 664 and 755 of the Customs Code (CA) determine the power of the Executive Branch (PE) to establish import duties (644) or export duties (755) on certain products, based on public policies to promote or protect the national industry, as appropriate in each specific case.
Based on the aforementioned articles of the CN, plus art. 17 referring to the right of property, which determines that only Congress is responsible for establishing the taxes mentioned in art. 4 (import and export duties) and art. 76, which expressly prohibits legislative delegation to the EP, although except in matters of public administration but for a specific period of time, and art. 99, paragraph 3, which prohibits the EP from issuing provisions of a legislative nature, which, even with the exception of the Decrees of Necessity and Urgency (DNU), could not contain tax provisions; it is then worth asking about the current constitutional validity of the powers delegated in arts. 664 and 755 of the CA.
Law Review
A resounding ruling in this matter has been that of Camaronera Patagónica, in which the Supreme Court of Justice of the Nation determined that “Only Congress has the power to set taxes, declaring the unconstitutionality of resolutions 11/02 and 150/02 of the Ministry of Economy” This also involved sub-delegated powers from the EP to the Ministry of Economy.
Conclusion
Both import and export duties are taxes, over which the legislative delegation to the EP is not possible. There being no limits, parameters or deadlines in these regulations, they undoubtedly violate constitutional principles and guarantees. But even so, it must be kept in mind that customs duties are not purely fiscal but carry a connotation of national economic policy, as stated by the teacher Ricardo Xavier Basaldúa who recently stated this in an interview in Aduana News, in which he said: “Protection is provided by measures that allow the tariff to be raised or lowered according to the international situation and the needs of the industry. If they are informed in advance, importers take their measures (they close letters of credit, hurry to import, stock up, etc.), because the legislative process is a process that, being transparent and public, takes time and gives importers and exporters room to adjust to the future increase in tariffs.”
Basaldúa also states in this interview: “These rights are customs duties because they imply the possibility of raising tariff rates. And in these cases, how can Congress intervene? The principle of legality must be made more flexible in customs matters because delegation is essential. Most countries in the world manage tariffs in this way because the different customs measures require rapid execution to be effective.”
Based on such reasonable considerations, perhaps this obstacle can be overcome by passing the budget law that the National Congress votes on annually. It is the EP that prepares its budget of the nation's expenses and annual revenue needs, therefore it is based on these same forecasts that the Congress could determine reasonable margins within which the EP would be given the power to establish tariffs based on the anticipated needs. Such forecasts are annual, given that the budget is prepared annually by the EP and sent to the National Congress for consideration. In this way, it would be the National Congress that would determine the parameters within which, during the course of the next fiscal year, the EP could make determinations based on arts. 664 and 755 of the CA, without thereby violating constitutional rights and guarantees, plus the determination of a fixed term in accordance with art. 76 of the CN.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
