Prior to the change of the National Government, reference was made to the possible measures linked to imports and exports that could be presented after the assumption of President Alberto Fernández, in the published note On December 7, 2019, one of them was related to the increase in “export duties” that was imposed by the Macri government through decree 793/18, ratified by Law 27.467 – General budget for the administration of the financial year 2019-The text referred to the fact that one of the variables could be left without effect: the limitation of 4 or 3 pesos per dollar, noting that, in any case, compliance with the powers in tax matters, which the National Congress has exclusively, according to the National Constitution, should be safeguarded.
Four days after the new Government was established, the National Executive Branch (NEB) issued decree 37/2019 (BO14.12.19): “The limit of four pesos ($4) for each US dollar, established in article 2 of decree no. 793 of September 3, 2018 and its amendments, is hereby repealed.” (cfr. Article 1 decree 37/19).
The decision led to an immediate increase in withholdings, which the government itself considered a mere adjustment to the devaluation that has occurred during the time elapsed since decree 793/18 came into force to date.
Is decree 37/2019 constitutional?
If we start from the analysis of decree 793/18 that gave rise to the export duty imposed until December 31, 2020, it established an export duty "ad valorem" of 12% according to article 1. In turn, the rule limited such tax to a cap of 3 and 4 pesos per dollar through article 2. This turns out to be a "specific" type of export duty.
Indeed, in the area of customs duties, as regards import and export duties, Law 22.415 (Customs Code) allows these taxes to be of an “ad valorem” or “specific” nature (art. 733 of the CA). While the first is defined as a percentage of the taxable value of the merchandise or of official FOB prices, the second tax is a levy determined by an amount through the application of a fixed sum of money for each unit of measurement (art. 752 of the CA). Consequently, if there is a limitation on a predetermined variable, in this case using a unit of measurement – “4 and 3 per dollar” –, it is clearly a “specific” type of export duty.
Any powers that may be considered legally delegated – generic delegations – according to article 755 of the Customs Code, they could only be possible for “ad valorem” type taxes and not for establishing or modifying specific rates.
This is supported by Law 22.415 (Customs Code) itself, which clearly states in its article 754 that “the specific export duty must be established by law”.
Based on this legal provision, the law itself, without leaving any room for doubt, limits any delegation to the PEN in specific export rights. Where applicable, if Law 27.467 – budget for fiscal year 2019 – ratified decree no. 793/19 which established in article 2 the specific export duty limited to 3 and 4 pesos per dollar, any modification and/or elimination of this type of tax must be – by constitutional rule and law – power of the National Congress (according to art. 754 of the CA), being excluded from the generic delegation conferred to the PEN by art. 755 to tax, reduce or modify export duties.
Consequently, it can be considered that the new decree 37/2019 and the regulatory norms, when exercising powers in the area of a specific export right, would have a serious defect. Consequently, it would be an unconstitutional norm when deciding on a matter that both the Constitution and Law 22.415 recognize as powers of the Legislative Branch.
By: Dr. Guillermo Felipe Coronel, Lawyer specializing in Customs Law
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.
