First of all, it should be clarified that this opinion column only analyzes the limitation of the Customs Chambers of the Tax Court to rule on the lack of constitutional validity of tax or customs laws and their regulations, without dwelling on its analogous prohibition for tax law (e.g. art. 185 of law 11.683).
Having defined the subject, in order to establish the question to be developed, it is worth remembering that art. 1164 of the Customs Code establishes that the judgment of the Tax Court may not contain a pronouncement regarding the lack of constitutional validity of tax or customs laws and their regulations, unless the jurisprudence of the Supreme Court of Justice has previously declared it, in which case the interpretation made by that Court may be followed.
The National Tax Court was created by Law 15.265 in 1959 and during its first five decades of existence its members have not questioned the validity of the limitation contained in Article 1164 of the Customs Code, however, this situation has changed in recent years.
I do not intend to address each of the reasons why the different Judges considered that the limitation contained in art. 1164 of the Customs Code was not applicable to the customs procedure before the National Tax Court, and for this purpose it is advisable to carefully read each vote.
However, it is worth remembering that in the context of the case “CARGILL SAC and I. (TFN 28.754-A)” (1), the Judge Pablo Adrián Garbarino held, in summary, that art. 1164 of the Customs Code could affect the guarantee of double instance and that it would then prevent effective judicial protection (2), contradicting -in some way and according to his rhetorical interpretation- the provisions of art. 18 of the National Constitution and the International Conventions of Constitutional Hierarchy (3).
Some years later, in the context of the case “TRANSPORTADORA DE GAS DEL SUR SA (TF 38.422-A)” (4), the Judge of the Tax Court Juan Manuel Soria Acuña, would rule on the subject, bringing up the case “FREYTAG ET AL. V. Commissioner of Internal Revenue, 501 US 868 -1991- IV-C” of the Supreme Court of the United States (5).
Finally, even though the position of the distinguished Judges Christian Marcelo González Palazzo and Miguel Nathan Licht has been to maintain the full validity of art. 1164 of the Customs Code, the precedent “NUTRIBRAS SA” (TFN 38.758-A) cannot be left unmentioned”(6).
The undersigned must state in advance that he subscribes to the position contained in the votes of Drs. Christian Marcelo González Palazzo and Miguel Nathan Licht and that, in addition, he adds to the debate a procedural issue omitted by all the Members, which consists in considering that the limitation of art. 1164 of the Customs Code is voluntary for the citizens in almost all cases(7).
Indeed, as I argued at the XIII International Conference on Customs Law held in the city of Buenos Aires on August 10 and 11, 2023, art. 1132 of the Customs Code allows the taxpayer to choose whether to appeal the customs resolution by going to the Tax Court (and arguing with its rules of the game) or if he prefers to file a contentious claim and, with that, go to court where he can raise the unconstitutionality of any rule.
Thus, I held and maintain that, in any case, we are dealing with a “self-limiting” case and that the validity of the limit of art. 1164 of the Customs Code could never be questioned, provided that it is noted that requesting jurisdiction before the Tax Court is optional for the litigant (that is, the Tax Court is an option that is added to the judicial review of the administrative act).
It is not lost on me that the charge formulated in the terms of art. 9, Section 2, subsection d) of the Customs Code could only be appealed in the terms of art. 1132 Section 2 of the Customs Code (that is, only the route to the Tax Court would be enabled) but it is no less true that art. 1034 of the Customs Code determines that in all presentations in which legal issues are raised or debated, within the framework of the customs procedure, legal representation will be mandatory.
Consequently, in such cases, since the analysis of the constitutionality of the regulations is a purely legal issue, the citizen will seek justice, in such cases, always with legal representation, with all that this implies, from the administrative headquarters before the Customs.
It should be clarified then, that the advice of the sponsoring attorney to the client is not limited to the substance of the matter but also to the procedural means (forms) to assert the claim, so it should be foreseen that technically it is not always convenient to challenge (using art. 1053 et seq. of the Customs Code) but that, in certain cases, it may be a better option to "pay and repeat" (using the mechanism of art. 1068 et seq. of the Customs Code). This taking into account especially that the customs administrative resolution that eventually rejects the repetition may be appealed in the terms of art. 1132 Section 1 of the Customs Code, thus safeguarding the possibility of resorting to the judicial route (art. 1132 Ap. 1b. of the Customs Code) when the dispute depends on an eventual declaration of unconstitutionality, not previously declared by the Supreme Court.
Given this position, it also does not escape me that when the administrator chooses to pay and repeat, he has to pay out the money -before- the fund is resolved, which would be equivalent to endorsing the application of the "solve et repete".
Regarding the “solve et repete”, it is worth mentioning that it was born in the year 70 BC in Sicily (ancient Rome), where a praetor named Verre was credited with putting it into practice in an arbitrary manner by subjecting the property of the inhabitants to the position of the publicans, pignoris capti, and forcing the taxpayers to promote the action to obtain the illegitimacy of the pignoris capio (8).
But the solve et repete rule is not in itself contrary to the rights of equality and defense in court (articles 16 and 18 of the National Constitution) and it is appropriate to recognize, in principle, the validity of the rules that establish the requirement of prior payment for judicial intervention and the need to mitigate this requirement in exceptional cases that involve specific patrimonial situations of the obligated parties, in order to avoid that this prior payment translates into a real impairment of rights (9).
In this order of ideas, it is worth remembering that already in 1989, in the framework of the proceedings entitled “MICROÓMNIBUS BARRANCAS DE BELGRANO SA. S/ IMPUGNACIÓN”, the Supreme Court established that: “(…) Laws 18.820 and 21.864 do not violate art. 8, paragraph 1, of the American Convention on Human Rights if the appellant has not even alleged that it would be impossible for him, due to the excessive amount of the deposit, to file the appeal provided for in the legislation in question, in such a way as to actually and effectively prevent the exercise of his right (…)”(10).
That being the case, I assume that what has been stated may seem unpleasant, perhaps even an objectionable legislative policy, but that does not make it illegal, since it was endorsed by the long-standing doctrine of our highest Court, the Honorable Supreme Court of Justice.
As legal practitioners, we must admit that the legal system is sometimes not what one expects, but understood as a whole, it tells us the rules of the game.
Since these rules are -as a whole- harmonious and consistent, their illegality should only be declared when they violate constitutional guarantees, a situation that is not verified in this case.
Indeed, declaring the system brought to us by the Customs Code illegal, in this particular scenario, would imply, according to my way of seeing the law, eradicating the doctrine of solve et repete and replacing the written and positive norm with our beliefs and ethical values.
The legal system, I repeat, may seem inconvenient, but it is undoubtedly legal. And when a rule is inconvenient, but legal, it is appropriate to appeal to Congress and not to the judges.
Therefore, I conclude that the Tax Court cannot rule on the lack of constitutional validity of tax or customs laws and their regulations, except in two cases:
(1°) when the jurisprudence of the Supreme Court of Justice has declared it before, in which case, it may follow the interpretation made by that Court.
(2°) when there is a “real” restriction on the right of defense and constitutional guarantees and not a self-limitation of the litigant, a situation that could only take place in those cases in which the citizen himself is prohibited from paying and repeating (for example, when an automatic fine is discussed).
The Tax Court is part of the Executive Branch and the latter cannot declare the unconstitutionality of the norms, since this would imply violating the Republican system of government, based on the separation of powers.
Indeed, the National Tax Court is defined as "(…) an autonomous body, specialized in tax and customs matters, which deals with the resolution of appeals filed by taxpayers against acts issued by the Federal Public Revenue Administration -DGI and DGA- (..)" This implies that it depends on the Ministry of Economy, ultimately, on the Executive Branch.
Notwithstanding the foregoing, its Members, in the opinion of the undersigned, are in substance Judges.
Of course, very particular judges, because they depend on the Executive Branch and not the Judicial Branch.
And the Judges, whoever they depend on, are also bound by the rules that emanate from the laws of substance and form, which establish what they can do and what they cannot do, depending on each case.
To admit that a judge in his mission to do justice is authorized to do what he is not legally authorized to do, invoking generic guarantees, is not only dangerous but contrary to law.
Finally, I would like to clarify that the above does not imply discrediting the Members or the delicate function they perform, quite the opposite.
The Members of the Most Excellent Tax Court of the Nation are specialized Judges, whose sentences are usually studied for their technical richness.
However, one thing does not preclude the other and, despite the argumentative efforts contained in the individual rulings ut supra, I remain convinced that they cannot declare the unconstitutionality of the laws, at least in those cases in which the administered party could -in some way- choose to appeal to the Justice, which is the one that has the delicate task of carrying out the constitutionality control.
- Sentence of the year 2012
- CORONEL DE LA TORRE, Felipe, “The control of constitutionality in the Tax Court”, published in https://aduananews.com/ the 29 / 07 / 2020
- There is no provision in the Customs Code that prohibits the Tax Court from declaring non-conventionalities. However, it is worth mentioning that by advisory opinion (OC-22/16) of February 26, 2016, it was resolved that Article 1.2 of the American Convention only establishes rights in favor of natural persons, so that legal persons are not holders of the rights enshrined in said treaty. Thus, following the vote of Dr. Pablo Adrián Garbarino in the framework of the case "ABB SA (TF 35.759-A)" (of May 13, 2019), the Tax Court of the Nation would have the obligation to abide by that decision of the Inter-American Court and therefore could not declare non-conventionalities when the plaintiff was a legal person (in general, most importers and exporters are legal persons).
- Judgment of the year 2019.
- For the sake of brevity, reference is made to the publication by the same author, -in re- “Constitutionality control by the National Tax Court. Unconstitutionality of arts. 1164 of the Customs Code and 185 of Law 11.683 (to 1998) – Dr. Juan Manuel Soria Acuña (Member of the HTFN)”, published in https://www.mercojuris.com/ on 15/03/2021
- Judgment of the year 2021.
- In this regard, see in https://www.mercojuris.com/ two publications of my authorship entitled “On the declaration of unconstitutionality within the framework of the customs procedure before the TFN – Automatic fines” and “Powers of the tax authority to impose sanctions: Commentary on the judgment of the “Nutribras SA” (TFN No. 38.758-A) case”, s. 14/5/21” of 20/06/2020 and 21/05/2021 respectively.
- TAMAGNO, ROBERTO, “Omeba Legal Encyclopedia” (1958) Edit. Bibliographic Argentina, Volume VIII, p. 779.
- From the opinion of the Attorney General to which the Supreme Court refers in the framework of the case “GIABOO SRL S/ RECURSO DE QUEJA”, G. 360. XLIX. REX, judgment of 10/11/2015. In a similar sense, see SCJN, Fallos: 333:2251; 333:161; 331:2480; 330:2739 and 330:2498, among others.
- SCJN, Rulings: 312:2490.
- https://www.argentina.gob.ar/tribunalfiscal
Lawyer (UBA), Customs Law Specialist (ECAE PTN), Customs Management Specialist (UNLaM), and Researcher (ECAE PTN). Professor of undergraduate and graduate customs law, member of the AAEF, IAEA, and the Customs Law Institute (CPACF). The opinions expressed in this publication are the author's own, technical, and should not be considered the opinions of any institution to which the professional is affiliated.
