This year, 2020, marks the sixtieth anniversary of the commencement of operations of the National Tax Court. Very prominent and prestigious figures in the legal and economic fields have graced the functioning of this court, generating doctrine followed by many of us on different occasions. It was created by Law 15.265 (1959), taking the American Tax Court as a model. It was fully established in 1960.
EThe purpose of the TFN is to oversee the exercise of the Administration, so that its actions conform to the law. In this way, the Administrative Court exercises self-protection of the Administration. In its functions, the TFN is limited in terms of its ability to declare unconstitutionality and This is one of the most debatable topics in recent times.This is so because by law, decisions may not contain a pronouncement regarding the lack of constitutional validity of tax or customs laws and their regulations, except in the case of a ruling by the Supreme Court of Justice of the Nation in which the unconstitutionality of those has already been declared, In which case they may (without obligation) follow the interpretation of the highest court. (art. 1164 CA)
This debate has focused on the power of the TFN regarding constitutional control, since it is an organ that is not part of the Judicial Branch, despite having the authority to address and resolve on appeal legal situations that affect constitutional rights and guarantees.
The debate has not only been generated by mere academic interest, but it emanates from specific situations that have become precedents when the Court has had to resolve cases that have been appealed. For example, in the case entitled “CARGILL SAC and I. v. GENERAL DIRECTORATE OF ADUANAS s/ Appeal Rec. (TF 28.754-A) In this case, Dr. Garbarino argued that in the constitutional reform of 1994 there had been a change in the order of our legal system (art. 75 inc. 22 CN) so it is appropriate to attend to the double procedural instance and it turns out that the TFN as an organ linked to the administration of justice is in charge of “always exercising control of conventionality, it goes without saying that it must also carry out an adequate control of constitutionality, given the intimate and indissoluble interrelation that exists between both”. The magistrate maintains that the legal impediment that weighed on the TFN regarding the exercise of constitutional control has been repealed by the international treaties. (in this case, the American Convention on Human Rights) incorporated into the constitutional text and therefore, of supralegal hierarchy.
In the understanding of the magistrate in question, the TFN exercises jurisdictional functions and also happens to be the only one specialized in customs matters in the entire country, for which reason it corresponds to have identical jurisdictional powers as the other judicial courts. Continuing with this criterion, magistrate Garbarino considers that it is appropriate to consider the unconstitutionality of art. 1164 of the CA insofar as it is in violation of art. 18 of the CN and the International Conventions of constitutional hierarchy, Given that Article 1164 of the CA would prevent effective judicial protection.
In the opposite direction we find the antecedent of the car "IVECO ARGENTINA SA (TF 2-.830 A) The notable judge Catalina García Vizcaíno held that Article 1164 of the CA should be applied, understanding that the TFN cannot rule on claims of unconstitutionality. At most, it could state its position in the judgment, but it would have no authority over constitutional control.
On the other hand, in the case of TRANSPORTADORA DE GAS DEL SUR, Judge Juan Manuel Soria considered that the TFN It has the same powers of independence and impartiality as the courts of the Judiciary.The judge also pointed out that our TFN has its antecedent in the US Tax Court of the United States of America, and that our CN also has its source in the American Constitution. He spoke about the FREYTAG ET. AL V. case in which the Supreme Court of the United States considered that the US Tax Court exercises a judicial function with the authority to interpret and apply the law in disputes between taxpayers and the State, which is why it cannot be exempt from constitutional control.
It is also often stated that all courts of justice inferior to the Supreme Court, whether they belong organically to the Judiciary or are outside of it, as long as they are courts of justice, have the power of constitutional control, and said power cannot be altered by any law, since it is a power conferred on all courts inferior to the Supreme Court regardless of whether or not they belong to the Judiciary, interpreting that such characteristic of a lower court is the one referred to in art. 116 of the CN.
We then have two very different positions regarding the issue under consideration. based mainly on two issues, namely:
- a) The first, linked to the guarantee of double instance, which is based on the incorporation into the constitutional text of international treaties that would oblige all bodies in charge of judicial decisions to control the constitutionality. However, there are two precedents of the Supreme Court of Justice of the Nation that have held different positions. For example, the precedent of the ruling "Rodríguez Pereyra, Jorge Luis and another v. Argentine Army s/ Damages and Losses" 27/11/2012; establishing that the bodies with judicial powers of the countries that ratified the Inter-American Convention on Human Rights are obliged to exercise constitutional control, disqualifying the internal norms that oppose the treaty.
But in the Fontevecchia and D'amico vs Argentina ruling of the Inter-American Court of Human Rights, our highest court interpreted that the international instruments ofThey had to comply with the sovereign reserve sphere in accordance with Article 27 of the CN.
- b) The second question is strictly linked to the comparison of the Administrative Courts with those that make up the Judicial Branch. And to do so we must consider the functions of each body in consideration of the division of powers and functions that correspond to each one. The question then arises: Can the role of the TFN in issuing its decisions be equated with those executed by the organs of the Judiciary itself? If so, should the power of constitutional control be extended to the decisions of the TFN?
We consider it important to point out that this court was created with the purpose of being a specialized jurisdictional control, both in tax and customs matters, for which there is a very close link with the constitutional norms, such as the principle of legality, tax capacity, non-confiscation, equality, equity, reasonableness, among others. One of the grounds for defending the position on the possibility of a declaration of unconstitutionality is that this court was created to fulfill a specialized role in the matter and this generates the following question: if this power is restricted due to its specialization? How could it be considered “specialized”? Would the role for which it was created be fulfilled? Would the purpose and regulatory spirit of Law 15.265 be violated?
On the other hand, when the taxpayer is faced with a determinative or customs resolution, it could not be considered that he is absolutely limited to the possibility of resorting to this type of defense (declaration of unconstitutionality), since he may opt for the path of the reconsideration appeal and subsequently, file the claim before the Federal Administrative Litigation Court; although this second option does not fulfill the role of being specialized in the matter.
In the event that the appellant decides to choose the route of appeal before the TFN, he will not be able to defend himself with the argument of unconstitutionality (as long as it is not analogous to a precedent of the CSJN), but at the same time if he chooses to go through the route of the contentious claim he would be limited as this jurisdiction does not have a specialized role in customs or tax matters.
That is, if the TF turns out to be the only recourse (depending on the type of procedure in question) and the limitation of the constitutional control could be considered as a serious impediment to justice. (Example, the application of automatic fines) However, and in accordance with the different processes in the customs field, the administrator has, for example, the powers of challenge and repetition, as prior to the appeal. He may also leave the federal case to the administrative headquarters.
Without prejudice to the above, it is important to note that the National Tax Court, as it is an administrative court, has certain powers that the Judiciary does not have, such as the ex officio impulse, informality and the search for material truth. These powers are exclusive to administrative courts. If this belonged to the Judiciary, it could not apply them.
Therefore, if the power to declare unconstitutionality is granted to the National Tax Court, Should it be able to have all the other powers that it has as an administrative court, such as informality, promoting ex officio proceedings and the search for material truth, moving away from what is alleged by the parties?
Just to continue with the reflections, it should also be noted that the international treaties incorporated into the constitutional text do not repeal the rest of its articles nor alter in any way the organization that the CN itself establishes in the legal order. This is in reference to the fact that said treaties must be applied in accordance with the public law previously established by the Constitution itself (art. 27 CN). And that, in addition, the application of the articles of the CN must be consistent with the preamble, from which arise the objectives that the CN itself establishes, such as, for example, strengthening justice.
In conclusion, we understand that although there is no doubt about the high professional qualities of the members of the TFN, there is a question that goes beyond this and has to do with the scope of justice of the administered. Although it is true that by raising the federal case it could reach the Supreme Court of Justice, the delay of the procedure also implies a prejudice to the appellant. Perhaps the solution to this problem comes from a Supreme Court ruling declaring the unconstitutionality, for example, of art. 1164 of the CA; it could be through legislative means by reforming the procedure or, through the integration of the TF into the orbit of the Judicial Branch within which the customs and tax jurisdiction could be created. In the meantime, the debate will continue not only as an academic matter but also in professional practice.
Guillermo J. Sueldo and Felipe Coronel de la Torre, lawyers specializing in Customs Law
The author is a lawyer, Master in Tax Law and Specialist in Customs Law.
