“The masterpiece of injustice is to appear just without being so.”
PLATO
It should be remembered that the National Tax Court exercises jurisdictional functions, and like the federal administrative litigation court, these are substantively or materially judicial –Therefore it is correct to say that it has jurisdictional-judicial functions., insofar as it is an organ (COURT) of justice (in the case of tax), impartial and independent of the active administration, and is the only magistrate in the country specialized in tax matters (imposition and customs), for which reason it must enjoy at least the same powers as those held by definition by any court of justice, insofar as all judiciaries have the unavoidable duty to adopt fair decisions based on full respect for the guarantees of due process and full double instance established in article 8 of the American Convention on Human Rights and equally participate in the sublime mission of administering justice, which is materialized through the issuance of JUDGMENTS, which is a proper and non-delegable function of a court of JUSTICE, and not of an administrative court, who puts an end to the process by issuing "resolutions".
Under such premises, and like the US Tax Court -which is the main source taken into account by the legislator when sanctioning Law 15.265, which created it- "it exercises a portion of the judicial power to the exclusion of any other function and in a similar way to the exercise of the federal courts" of the US, for which reason it is endowed with an "exclusive judicial role", with "independence from the legislative and executive powers", according to the judgment issued in 1991 by the Supreme Court of Justice of that country in the famous case "Freytag v. Commissioner", which is fully applicable to the local case.
Indeed, the indisputable and obvious character of the Tax Court as an independent and impartial Court of JUSTICE not only arises from the correct interpretation of the National Constitution, its creation law and the defining foreign jurisprudence. supra mentioned, but is also required by the express provisions of Article 8 of the American Convention on Human Rights (Pact of San José, Costa Rica) - approved by Law 23.054 - and Article X of the General Agreement on Tariffs and Trade (GATT 1994), approved by Argentina by Law 24.425.
However, both article 185 of law 11.683 (Tax Procedure) and article 1164 of law 22.415 (Customs Code) expressly provide that "The judgment - referring to the one issued by the Tax Court - may not contain a statement regarding the lack of constitutional validity of tax or customs laws and their regulations, unless the jurisprudence of the Supreme Court of Justice of the Nation has declared their unconstitutionality, in which case the interpretation made by that court may be followed."
Beyond the crystal-clear clarity of the referenced regulations, it should never be lost sight of that the Inter-American Court of Human Rights has held that "when a State is a Party to an international treaty such as the American Convention, all its organs, including its judges, are subject to it, which obliges them to ensure that the effects of the provisions of the Convention are not undermined by the application of norms contrary to its object and purpose, so that judges and organs linked to the administration of justice at all levels - a condition that undoubtedly belongs to the Fiscal Court of the Nation - are obliged to exercise their powers." ex officio a “control of conventionality” between the internal norms and the American Convention, evidently within the framework of their respective competences and the corresponding procedural regulations and in this task, they must take into account not only the treaty, but also the interpretation of it made by the Inter-American Court, the ultimate interpreter of the American Convention.”[2].
Similarly, in the European Union system it is possible to find notions similar to that of inter-American conventionality control. Thus, doctrines such as “supremacy” or “direct effect” grant national judges the power to review the legal validity of domestic norms in accordance with those originating from the Council of Europe.[3], which has led some to assert that such would be the equivalent of the inter-American case[4]; although the characteristics of the Court of Justice of the European Union are not comparable to those of the Inter-American Court of Human Rights, since the European equivalent of this Court would be the European Court of Human Rights.
This being the case, if the national interpreter or operator –which in this case would be the National Tax Court as it is an organ (COURT) linked to the administration of justice- must, by virtue of jurisprudence supra cited, always exercising control of conventionality, it goes without saying that it must also carry out an adequate control of constitutionality, given the intimate and indissoluble interrelation that exists between both[5].
In this sense, the coexistence of two subsystems with the same hierarchical status imposes inclusive integration as an interpretation criterion, so the necessary consequence of its application allows us to conclude that any internal rule that violates the guarantees of the Pact must be rendered inoperative.
Therefore, the rules that prevent constitutional control by the National Tax Court have been repealed by the American Convention on Human Rights, given their supralegal hierarchy.[6], repeal reaffirmed by the constitutional reform of 1994, which assigned constitutional hierarchy to international instruments on human rights – named in its article 75, section 22, second paragraph, plus the other treaties and conventions on human rights that Congress approves subsequently, although these under the conditions of its third paragraph –[7].
Finally, and in this order of ideas, it can be concluded that "in cases where the interpretation of a procedural rule is at stake, the principle is applicable according to which the laws must be interpreted taking into account the general context and the purposes that inform it, in the way that best fits and harmonizes with the remaining legal system and with the constitutional principles and guarantees, as long as this does not unduly force the letter or the spirit of the precept that governs the case.[8] ... even in cases not expressly contemplated, the intelligence that favors and not the one that hinders that harmony and the ends pursued by the rules must be preferred[9], which authorizes, without further ado, to conclude that the Tax Court of the Nation can rule on the constitutional issues that could be introduced before its headquarters.
Otherwise, denying the Court full authority to declare laws unconstitutional when the contested rule is clearly contrary to the Fundamental Law would constitute a direct limitation on the way in which its members perform their duties and on their independence (of judgment), which is not in accordance with the prevailing legal order, since in such cases they should apply it anyway, even if they are aware of deeming it unconstitutional. Therefore, the legal restriction reduces its mission to an “art pour l'art” that is not very edifying and barely compatible with a constitutional state of law, clearly minimizing the functions that society has entrusted to those citizens who are in charge of the administration of justice at all levels.
For its part, the principle of constitutional supremacy contemplated in art. 31 of our National Constitution poses to the TFN the imperative challenge of displacing the normative prohibitions contained in articles 185 of the Tax Procedure Law and 164 of the Customs Code, for being contrary to our Supreme Law.[10], since an interpretation to the contrary can only be based on an unreasonable exegesis of the aforementioned norms, which do not harmonize with the fundamental principles at stake, since it would be granting undue preeminence to the provisions of the tax texts over the postulates of the American Convention on Human Rights, rendering it partially inoperative, which is contradictory to the legal order, both conventional and constitutional.
Therefore, it is only possible to conclude that the National Tax Court cannot be prevented from declaring unconstitutionality, but rather is obliged to do so.[11]; since its members should never limit themselves to applying only the legal norms in their sublime mission of dispensing justice, especially when they contravene International Pacts, but rather by fully applying constitutional and conventional principles - of supralegal hierarchy and impossible to ignore - it would be appropriate that they always strengthen, ultimately, the validity and progressiveness of the principle of effective jurisdictional protection in tax matters.
Therefore, it is necessary to remove all legal obstacles that prevent the judges of the National Tax Court from exercising constitutional control and, ultimately, declare the unconstitutionality of both article 185 of law 11.683 and article 1164 of the Customs Code.[12] because both are clearly in violation of Article 18 of the National Constitution and of the International Human Rights Conventions that have constitutional hierarchy, insofar as they safeguard the fundamental right to effective administrative, jurisdictional and judicial protection (Articles 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, 2nd paragraph 3, sections a) and b), and 14 paragraph 1 of the International Covenant on Civil and Political Rights).
By Pablo Garbarino [1]
Source: DPI Newspaper
[1] Judge of the National Tax Court.
[2] cf. cases “Cabrera García and Montiel Flores vs. Mexico”, of November 26, 2010, paragraph 225 and “Gelman vs. Uruguay”, of February 24, 2011; paragraph 193; among others.
[3] The European Court of Justice inaugurated these doctrines in 1964, in the case Costa v. ENEL, which were later developed in cases such as Amministrazoine delle Finanze dello Stato v. Simmenthal, of 1978. See Alec Stone Sweet, Constitutionaism, Legal Pluralism, and International Regimes, 16 IND. J. GLOBAL LEGAL STUD. 621, 636 (2009).
[4]Juan Carlos Hitters, Control of constitutionality and control of conventionality. Comparison (Criteria established by the Inter-American Court of Human Rights), 7(2) ESTUDIOS CONSTITUCIONALES 109, 112-13 (2009) (“The truth is that this 'control of conventionality' is not only exercised in the regional system corresponding to the area of human rights, but also that said inspection has been carried out for a long time in community law, both by national judges and by the Luxembourg Court itself”).
[5] confr. Sagues, María Sofía, “Approach to the feedback between the control of conventionality and the control of constitutionality in light of a recent ruling by the Supreme Court of Justice of the Nation”, El Dial Legal Journal, October 4, 2010.
[6] “Failures” 315:1492.
[7] confr. Corti, Arístides, “On the jurisdiction of the National Tax Court to declare the unconstitutionality of laws”, in “National Tax Court, 50 years after its creation”, EDICON, May 2010, volume II, p. 133.
[8] Errors 256:24; 261:36; 307:843; 310:933 and their citations.
[9] Rulings 303:1007, 1118 and 1403, among others)” (conf. opinion of the Attorney General in Rulings 319:585.
[10] in the same sense see Spisso, Rodolfo: “Actions and Resources in Tax Matters”, Editorial Lexis Nexis, second edition, page 35.
[11] confr. Giuliani Fonrouge, Carlos M.: “Financial Law”, 4th Edition, pp. 833/834.
[12] As it did for the first time in history with the dissenting vote of Chamber “F” in re “Cargill SAC e I. c/ DGA” (File No. 28.754-A), dated 2/11/2012.
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