By means of the sanction of Law 24.196, an investment regime for mining activity was created, to which individuals and legal entities that carry out the activity in the Argentine Republic could join. Said regime granted its beneficiaries a system of “fiscal stability” for a period of thirty years, through which they could not see their total tax burden increase, to the extent that the effects of said increase were not offset by the elimination or reduction of other taxes and/or tax regulatory modifications that are favorable to the taxpayer.
In 2002, Resolution No. 11/2002 (ME) was issued, through which export "rights" for consumption of merchandise included in the Common Nomenclature of Mercosur were established, adding to those already existing. In order to do so, mining activity, among others, was affected by said tax increase. Recently, the Supreme Court of Justice of the Nation issued a ruling on this matter in the case “Procesadora de Boratos Argentinos SA (TF 28.177-A) v/Dirección General de Aduanas” (dated 1/04/2014), making express reference to the arguments set forth in the case “Procesadora de Boratos Argentinos SA (TF 28.448-A) v/Dirección General de Aduanas” (dated 19/11/2014), where it was interpreted that there is no conflict between the “fiscal stability” instituted by Law 24.196 and the payment of export duties established by Resolution No. 11/2002 (ME), understanding that if the tax increase is finally accredited, the legal regulation itself (Law 24.196) provides a mechanism to offset or return the excess amounts paid. However, the Federal Court of Appeals for Administrative Litigation, without prejudice to recognizing and accepting the arguments presented by the higher court of justice, has introduced for study and thus ruled on something that has not been addressed by the Court, and that may generate a modification to the criterion upheld by the highest Court of the Argentine Republic, which is the "unconstitutionality" of Resolution No. 11/2002 (ME). Thus, in the case "Procesadora de Boratos Argentinos SA c/DGA – File No. No. 41162/2013” (of 13/02/2014), the Court held that the considerations already set forth in the case “Whirlpool Puntana SA (TF 21639-A) c/DGA”, judgment of 22/11/11, were applicable to the case, where it expressly declared the unconstitutionality of the rule on the grounds that it affects constitutional precepts and is detrimental to the commitments assumed by the Member States of Mercosur. Considering that the “export duty” in the terms of ME resolution No. 11/2002, would not be applicable to mining exports and also to others. This recent decision of the Federal Administrative Litigation Chamber is now before the Supreme Court of Justice of Argentina and its decision is expected to determine a new look regarding the application of export duties for both the mining sector and other export operations within MERCOSUR. The Chamber has already expressed its opinion through its ruling that the application of “export duties” is not appropriate; we will see the decision that the Court makes in the coming months.
Dr. Adriana Lipani
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.
