Supreme Court:
1º) On fs. 95197, Chamber II of the National Court of Appeals in Federal Administrative Litigation, when reversing the judgment of the previous instance, confirmed what was opportunely decided by the General Directorate of Customs in its resolution 433/07 (DI ADEZ), by which it rejected the request for a refund of the amount paid (US$ 124,40) by the plaintiff by virtue of the "convergence factor" established by decree 803/01, when carrying out the import for consumption documented in dispatch 01 073 IC04 088813 C. In order to decide, it estimated that decree 803/01 created a transitional regime for foreign trade and that the convergence factor established therein sought to grant greater competitiveness to exports. Regarding import operations, he stated that the latter was settled at the time of official clearance, calculating it on the declared CIF value, and in accordance with the variation in the parity between the euro and the US dollar, published daily by the Central Bank of the Argentine Republic.
The Court recalled that the aforementioned regulation was part of a "battery of policies" aimed at promoting the strengthening of the national competitive capacity and re-boosting the growth of the country's economy, with the introduction of a mechanism for the benefit of exports financed by importers, whose nature - in the opinion of the Chamber - is not tax-related, but rather consisted of an adjustment of the exchange rate, applicable exclusively to foreign trade operations. The Court concluded that the convenience of the transitional exchange rate regime is not susceptible to evaluation by the judges, since it is within the scope of Article 99, paragraph 1, of the National Constitution.
2º) Disagreeing with the 10th decision, the plaintiff filed the extraordinary appeal that appears on pages 101/120 back, granted on pages 131. He argues - in summary - that the judgment has made an incorrect interpretation of the institute in question, which, in his opinion, is undoubtedly a tax. He adds that decree 803/01 conflicts with the provisions of law 25.414, insofar as the latter delegated a set of powers to the Executive Branch, none of which authorized it to establish the aforementioned "convergence factor", even in the event that it was assigned a currency nature.
3) In my opinion, the federal appeal is formally admissible, since the validity and intelligence of a federal norm (decree 803/01) has been called into question and the final decision of the superior court of the case has been contrary to the right that the appellant has based on it (art. 14, paragraphs 1 and 3 of law 48).
4) In the opinion issued in case A.311, L.XLVI, «Aceitera General Deheza SA (TF 22313-A cl DGA», September 2010, I stated that decree 803/01 established the «transitional regime for foreign trade», implemented through the establishment of the «convergence factor» (art. 1), which was to be calculated daily by the Central Bank of the Argentine Republic (art. 3), in accordance with the formula established in its article 4, which determined that it was equivalent to one US dollar less the simple average of one US dollar and one euro of the European Union, according to the exchange rate set there. There I also stated that this regime was aimed at granting exports greater competitiveness to obtain a better insertion of Argentina in world trade (paragraph 1 of the recitals of the indicated rule), by granting a «benefit to the exporters» (paragraph 2 of the recitals of the indicated rule), by granting a «benefit to the exporters» (paragraph 4 of the recitals of the indicated rule), by means of granting a «benefit to the exporters» (paragraph XNUMX of the recitals of the indicated rule), by means of granting a «benefit to the exporters» (paragraph XNUMX of the recitals of the indicated rule), by means of granting a «benefit to the exporters» (paragraph XNUMX of the recitals of the indicated rule), by means of granting a «benefit to the exporters» (paragraph XNUMX of the recitals of the indicated rule), by means of granting a «benefit to the exporters» (paragraph XNUMX of the recitals of the indicated rule), by means of granting a «benefit to the exporters» (paragraph XNUMX of the recitals of the indicated rule), by means of granting a «benefit to the exporters» (paragraph XNUMX ... "exports" (paragraph XNUMX) which, within the framework of the convertibility law, did not affect the monetary scheme then in force nor did it have -in principle- fiscal cost (paragraph XNUMX).
As regards import operations - the case at hand - the aforementioned convergence factor had a different impact, since its article 5 established that importers "must simultaneously enter into the nationalization of the goods they import, the Convergence Factor (FC) multiplied by the CIF value of the imports they make valued in US Dollars (...)".
In my opinion, in relation to importers, the amount to be paid - calculated based on the convergence factor - constitutes, without hesitation, a "contribution" in the terms of arts. 4 and 17 of our National Constitution, of an undeniable tax nature, since it is a sum of money that must be paid by certain taxpayers - determined by the law -, based on certain considerations of capacity to contribute, and which is intended to cover public expenses.
In other words, the rule defines a factual assumption that, when verified in the reality of the specific case, compels the payment of a sum of money to the public treasury, under the conditions established by it, since such obligation has as its source a unilateral act of the State and that its compliance is coercively imposed on the affected individuals, whose will lacks, for these purposes, any effectiveness (arg. FaIlos: 318:676, considering 8°).
And, contrary to what was stated by the defendant, I consider that it cannot be argued that such contribution enjoys sufficient legal coverage since, in effect, Law 24.425 (invoked in the "views" of Decree 803/01) does not create coercive patrimonial deduction for any food in question here, nor does it authorize its creation. And, on the other hand, this is not contemplated in the jurisdictional sphere authorized for the National Executive Branch by art. 1 ° of art. 99 of the National Constitution (arg. Rulings: 182:410). This leads me to conclude that the now challenged rule has a defect of origin and that whatever is void of the principle of legal reserve, by contradicting arts. 4°, 17, 52, 75 (incs. .1 0 and 2°) and 99 (inc. 3°) of the Magna Carta (see C.524, L.XLII, «Cladd Industria Textil SA and another cl IN SAGPYA – resol 91/03 if protection law 16.986», judgment of August 4, 2009).
It is essential for me to insist that it is unquestionable that we are faced with a tax that, beyond its sub-constitutional framework, which is not relevant for the purposes of this analysis (Rulings: 314:595, cons. 10°), has been established through a mechanism that is clearly outside the only way that our Magna Carta provides, that is, through formal law.
In line with the above, I cannot help but recall here that our National Constitution prescribes, repeatedly and as a fundamental rule, both in article 4 and in articles 17 and 52, that only Congress imposes the contributions referred to in the first of them. The Court has said in this regard, forcefully, that "the constitutional principles and precepts prohibit any other Power than the Legislative from establishing taxes, contributions and rates (Rulings: 155:290; 248:482; 303:245; 312:912, among others) and, in accordance with this, it has repeatedly affirmed that no tax burden can be enforceable without the preexistence of a legal provision framed within the constitutional precepts and requirements, that is, validly created by the only power of the State invested with the Constitution."
of such powers" (arg. Rulings: 316:2329; 318:1154; 319:3400; 321:366; 323:3770, among many others).
Finally, I must point out that the fate of the institute in question is not improved by attributing to it a merely exchange nature, since, as the Court has said, it would act, in cases such as the one at hand, "like a tax" or an "atypical tribute" (arg. Rulings: 294:152, cons. 14 and 25).
5th) In light of the above, I believe that the extraordinary appeal should be upheld and the appealed judgment should be overturned.
Buenos Aires, April 12, 2011
IT IS A COPY OF LAURA M. MONTI
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