The ruling issued by the Tax Court of the Nation in the case "ALPEMAR SRL c/DGA s/ appeal" of file No. 36.110-A (21.12.2018) is interesting, through which two particular issues of importance in customs matters were addressed.
The first point to be highlighted is the treatment of the power of the distinguished National Tax Court in the exercise of constitutional control. The second refers to the reasonableness of the interest rates applied to customs tax debts.
It should be noted that the ruling was supported by three votes of the members: Dr. Pablo A. Garbarino, Dr. Christian M. González Palazzo and Dr. Ricardo Xavier Basaldúa. We advance that we support the positions of member Dr. Garbarino regarding the “application of interests” not entirely aligned with the other members, as well as, regarding the “constitutional power” that the associate judges have supported the considerations of the first member mentioned.
Power of constitutional control
Dr. Garbarino's vote highlights:
- "It can only be concluded that this Court cannot be prevented from declaring unconstitutionality, but rather is obliged to do so. (cf. Giuliani Fonrouge, Carlos M.: “Financial Law”, 4th Edition, pp. 833/834); therefore there are no legal obstacles that prevent such a decision and article 1164 of the Customs Code itself is unconstitutional because it violates article 18 of the National Constitution and the International Conventions on Human Rights that have constitutional hierarchy, insofar as they safeguard the fundamental right to effective administrative and judicial protection (arts. XVIII and XXIV of the American Declaration of the Rights and Duties of Man, 8° and 10° of the Universal Declaration of Human Rights, 8° and 25° of the American Convention on Human Rights, 2° inc. 3° aps. a) and b), and 14 inc. 1° of the International Covenant on Civil and Political Rights), as indicated by the undersigned in re “CARGILL SAC and I. c/
GENERAL DIRECTORATE OF CUSTOMS s/ appeal”, file no. 28.754-A, dated November 2, 2012”.
– “To admit the contrary would mean unjustifiably curtailing the broad and
effective right of the administered to fully access a jurisdictionally capable body to claim the recognition of fundamental rights in all their extension, violating, ultimately, the validity and progressiveness of the principle of effective jurisdictional protection in tax (customs) matters, which is protected both in various international treaties that they hold, as was pointed out by the Supreme Court of Justice of the
Nation, in Rulings 315:1492…”.
These arguments presented by the judge Garbarino have been confirmed by the other judges. Consequently, the ruling makes it clear that the Tax Court has powers of constitutional control.
Comment:
The position supported by this ruling is worthy of consideration, both from a positive point of view and from a need for the community. Although Article 1164 of the Customs Code, when dealing with the powers of the Tax Court, specifies that it will not have powers of this kind, the evolution of international and national regulations since the reform of the National Constitution in 1994, requires generating a greater scope of powers for courts such as the Tax Court itself. But we must be even more precise and that is that such powers are more eloquent when analyzing this outstanding Court, which, although it is within the structure of the Executive Branch, its suitability, specialty in the matter and due administration of justice, requires that the administered person can count on a complete and clear guarantee in the protection of their fundamental rights. To curtail such an attribution in a court like this, generates a constraint on the due exercise of defense in taxpayers, who may be affected in their guarantees, by limiting the treatment of issues that necessarily require the review of their claims of unconstitutionality. Especially when it is a Court that supports the substantiation of the case, extensive production of evidence and precautionary measures in search of
objective truth. The set of these powers, together with the specialty and outstanding rulings, merit embracing this position of power of constitutional control.
Furthermore, for those who may maintain that the power of constitutional control is only limited in its exercise by the judges who make up the benches of the Judicial Branch, it should then be considered that the failure is not in limiting constitutional control in a Court such as this one, but that this body of justice is not incorporated into the Judicial Branch of the Nation, and should be removed from the orbit of the Executive Branch. Its impartiality, objectivity and speciality are presuppositions that should support this position.
Considering appropriate decisions such as those highlighted in this ruling regarding its power to administer justice. In order to move towards a prompt incorporation into the Judicial Branch of the Nation of a Court that has always been outstanding in its work of administration of justice. Consequently, although it is a Court belonging to the orbit of the Executive Branch, its work of justice, from the objectivity and impartiality of its rulings, merits embracing the positive position of powers in the exercise of constitutional control.
Reasonableness of the application of interest
The other issue addressed by this ruling is the interest applied to customs tax debts. Although it has not been the subject of treatment from the point of view of the unconstitutionality raised by the appellant, not being rejected due to the lack of powers in such exercise of constitutional control that the Tax Court assumes to hold as indicated in the previous point, it was considered that there was no clear evidence regarding the confiscatory nature of which the appellant was aggrieved.
In any case, the Court has carried out, based on the opinion of the member Dr. Garbarino, an analysis of the interests and their reasonableness.
Thus, Judge Dr. Garbarino stated:
– “That, however, the fact that in this case it is not appropriate to carry out the constitutionality control requested by the appellant firm does not imply, per se, that the judge cannot apply the general principles of law to analyze the reasonableness of an interest rate in foreign currency (US dollar) which, within the current economic context, reaches 3% monthly, because society has entrusted it with the highest function that a citizen can access, which is not to apply the rules mechanically, but to dispense justice in all its splendor."
– “Under such premises, General Resolution (AFIP) No. 3271/12 provided that when making the liquidations of debts for customs taxes (import and export duties, among others) for taxable events generated after the sanction of Law 25.561, the amount of the tax originally determined in US dollars, should be maintained in said currency until the day before its cancellation. In summary, the capital of the tax obligation
“It remains updated in dollars until its effective payment.” Likewise, the aforementioned Resolution, regarding the applicable interest, provides that the same must be calculated on the capital owed – in pesos – until the date of payment, in accordance with the provisions of art. 794 and related articles of the Customs Code.”
– “In both tax and customs matters, the rate and the mechanism for applying compensatory and punitive interest are generally set by the SECRETARIAT OF THE TREASURY in accordance with arts. 37 and 52 of Law 11.683, and arts. 794 and 797 of the Customs Code, respectively. It is in these terms that in 2010 the Ministry of Economy and Public Finance issued Resolution No. 841 by which it raised the rate applicable to compensatory interest to three percent (3%) per month and the rate corresponding to compensatory interest to three percent (XNUMX%) per month.
punitive at four percent (4%) per month, maintaining the rate applicable to cases of repetition at fifty one hundred percent (0,50%).
– “Consequently, at present, on the principal in dollars -since the exchange rate to convert the sums of dollars into pesos is the one in effect on the day before the actual payment- an annual interest rate of 36% and 48% is applied for compensatory and punitive interest, respectively; without the maximum parameter provided for in article 794 of the Customs Code being able to be taken for such purposes, since the measure for better provision ordered in this case shows that there is no interest rate for discounting commercial documents for debts in US dollars (see response of the Banco Nación de la República Argentina on pages 158/160).”
– “Hence, in the species, The National Treasury (AFIP-DGA) intends to collect a debt in foreign currency, applying compensatory interest that is manifestly exorbitant, and that does not find any parameter or justification in the social and economic reality of our country.".
– “And while it is true that the delay of taxpayers in their social duty to contribute to the maintenance of the State by fulfilling their tax obligations conceives the possibility of setting a high interest rate – which does not favor a specific person but society as a whole –, This is not appropriate or compatible with the essential principles of justice, ethics and equity when this rate is manifestly disproportionate and ends up clearly affecting the constitutional and conventional rights of taxpayers.".
– “Moreover, Chamber “V” of the Honorable Federal Administrative Litigation Court has reached a similar conclusion in file No. 28.208-A entitled “Procesadora de Boratos Argentinos SA” where it held that “…the interest rate used in the contested settlement leads to an excessive result, since the amount resulting from applying the rates provided for in MEyP Resolutions No. 492/06 and 891/10, of 2% and 3%, respectively, has significantly exceeded the reasonable expectation of preservation of the Treasury’s assets and the compensation corresponding to the deprivation of the use of the capital; which results in unjust enrichment for the creditor, since it clearly deviates from the total amount of interest that would have accrued on that same debt, considered in US dollars.”
- "Therefore, Therefore, for strict reasons of equity, the customs debt in question must be set within its fair and ethical limits, especially in the current social context of instability and economic and financial crisis. Therefore, it is appropriate to admit the grievance formulated by the plaintiff firm in this regard, to moderate the interest rate applied by the AFIP-DGA in the contested resolution and to order that a new liquidation be carried out applying the interest rate corresponding to the obligations in dollars provided for in Resolution ME No. 21/91 -for reference purposes-, which was one percent (1%) monthly.
The remarkable considerations made by the member in his vote have not been supported by the other members, who held that "It is worth mentioning what was said by Chamber III of the Honorable National Chamber of Appeals in Federal Administrative and Contentious Matter in "Borat Processor C/ DGA" (File 21840/2012, TF 28.181-A) where it clearly states that "to accede at this stage of the case, without mediating the production of suitable evidence, to the disqualification of the interest rates set by Resolutions 492/06 (MEyP) and 841/10 (MEyFP), to apply a rate that is not in force (e.g.: the rate provided for in Resolution ME 21/91), would imply replacing the Administration in its area of discretion without sufficient factual and legal support. Indeed, the establishment of the interest rate applicable to tax credits is carried out on the basis of criteria of opportunity, merit and convenience that are not susceptible to judicial review, and it is only up to the judges to control the legitimacy of the actions of the administrative authorities, not being empowered to substitute themselves for them in the assessment of circumstances outside the legal field (CSJN; RULINGS 308:2246 and its citations 311:2128; 321:1252, espc. Consid. VII and its citations)…”.
Comment:
Justice must safeguard equity and reasonableness in tax matters and although the State, from its power as an active subject, is responsible for demanding payment of the different taxes, it does not seem that such action should be imposed above any coercion of these guiding principles in tax matters, which must always be aligned with the protection of constitutional guarantees.
Trying to impose taxes in dollars and maintain them over time, adding interest that was considered for pesos, but applying them on the basis of dollars, shows to any mortal the absence of equity and reasonableness. Disturbing the guarantee of property and the scope of a confiscatory situation of the State, based on one of the great evils that Argentina has in its economy, which is the constant devaluation of its currency.
Therefore, in addition to the clear and precise arguments presented by the member Dr. Garbarino, we respectfully dare to extend the following considerations:
The Customs Code specifies in its articles 637 and 638 the different “taxable moments” among them and in general terms, the most appropriate is when a definitive import destination is made official (the registration of the corresponding request for import destination for consumption – cf. Inc. B art. 637 of the CA). Likewise, art. 639 of the same legal complex determines that for the purposes of liquidating import taxes and other taxes that tax imports for consumption, the tax regime, the rate, the taxable base and the corresponding tax rate will be applicable. the exchange rate for converting foreign currency into legal tender, in force on the dates indicated in articles 637 and 638.
In this context, if the event generating the obligation is a definitive destination, both the tax to be applied and the exchange rate must always be aligned with the certain date of that fundamental element in customs tax matters, which is the "taxable moment" in accordance with art. 637 and 638 of the CA according to each case.
Therefore, the liquidations, whether original or supplementary, must start from the corresponding “taxable moment”. Otherwise, if it were aligned with the contradictory position established by AFIP Resolution 3271/2012 –exchange rate fixed on the day before its actual payment- , under this criterion, it could be considered that the regime to be applied could also be modified over time. Which would be illogical in the eyes of any subject. Generating a state of uncertainty and legal insecurity in the field of foreign trade. In this same sense, if the law clearly establishes the "exchange rate" in line with the "taxable moment", this cannot be modified in another direction.
On the other hand, both Law 22415 and Resolution No. 841/10 of the ME and FP provide for the application of interest on the determination in “pesos”. That is to say, that these interests will accrue on a base in “pesos” currency and not on “US dollars” currency. Hence, their percentage is determined and updated on the basis of the national currency “pesos”. It is enough to observe that Resolution No. 841 of the ME and FP corresponds to the year 2010, time in which the interests were liquidated on the basis in pesos at the exchange rate of the taxable moment and counted from the day after the default in which the taxpayer fell (art. 794 of the CA)
Adding the postulate of maintaining the tax requirement in dollars and being paid in pesos at the exchange rate of the day prior to its actual payment, complementing interest that was imposed for peso currency with the criterion of keeping them in dollars, as highlighted by the member Dr. Garbarino "is exorbitant."
Although we do not agree that the exchange rate should be considered as the one of the day prior to the effective payment for those tax debts. Because this is moving away from the premise established by article 639 of law 22.415. In this case, if Resolution 3271/2012 is applied, it cannot add interest equivalent to “pesos” currency on a base that is born from “dollars” at the exchange rate of the day prior to the effective payment. With the aggravating factor, that such interest takes a start date for
Its application is retroactive to the time of default, which in terms of reasonableness, at that time (start of default), will never result in a capital amount in pesos equal to that taken to obtain the determination of the interests. Externalizing a precise proof of the confiscatory action by the Treasury when proceeding in this way. Which leads to a clear arbitrariness and with it to the unconstitutionality of the scheme that the Customs currently applies when imposing General Resolution 3271/2012 in supplementary liquidations and combining it with
the settlement of interest under art. 794 of the CA
As the doctrine rightly maintains, “a harmonious interpretation of Law 23.905 in conjunction with Laws 23.928 and 25561 implies limiting dollarization only to the purposes of allowing the various values necessary to settle the tax in an “original” manner to fulfill their role at the same time, without this being able to be interpreted as the possibility of applying this system to cases of subsequent “supplementary” determinations, since this would violate the prohibition of Laws 23928 and 25.561” (see. Código Aduanero Antado – p. 337 Vol. II – Mario Alsina, Enrique C. Barreira, Ricardo Xavier Basaldúa, Juan P. Cotter Moine, Héctor Vidal Albarracín – Ed. Abeledo Perrot).
In conclusion, the arguments presented by the Member Dr. Garbarino are typical of a view of justice that broadens its vision towards the balance between the power of the State in tax matters and the harm it causes to the taxpayer. This is based on a scheme of positive law, with sufficient factual and legal support and not on the attribution of contradicting the powers of the administration regarding the setting of the rate.
of applicable interest. Quite the contrary, we understand that its analysis encompasses the powers of judges, which is to control the legitimacy of the actions of administrative authorities.
Aspects such as these are what further justify the need for this Court to exercise the function of constitutional control in cases in which citizens are affected in their guarantees in tax matters.
By: Dr. Guillermo Felipe Coronel
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