The Social Solidarity and Productive Reactivation Law No. 27.541 has provided in its articles the possibility of complying with the cancellation of tax debts that may have arisen as a result of a customs offense.
As Dr. Guillermo Felipe Coronel has explained with legal solvency and pedagogical quality in note entitled “Customs criminal extinction as an effect of the law of social solidarity”, the measure is aimed at those who are responsible for taxes due on November 30, 2019 and for various reasons, meaning in the case at hand those who face proceedings for customs offenses; remembering that in court only cases for smuggling are processed, that being the only customs offense. Violations are substantiated in administrative headquarters.
The law provides for the possibility of regularizing debts with forgiveness of fines and interest and thus two very important effects, which are the suspension of ongoing actions and the extinction of criminal and infraction actions.
In order to benefit from the stipulated regime, the same law establishes that such requests must be made by April 30, 2020. In addition, when such a request is filed, the AFIP must be notified so that, through the customs service, it can carry out the tax liquidation, the amount of which would be the one that the applicant should pay to obtain the benefit of the extinction of the actions that he is facing. But it turns out that the same law 27.541 provides: Article 9°- “The obligations provided for therein that are under administrative discussion or are the subject of an administrative or judicial procedure on the date of publication of this law in the Official Gazette are included in the provisions of the previous article, as long as the defendant unconditionally agrees to the regularized obligations and, where appropriate, desists and renounces all actions and rights, including the right of recourse, assuming payment of legal costs and expenses.”
The power of the State in this regard is not being discussed, but rather the reasonableness that it exercises in the issuance of norms, in accordance with constitutional rights and guarantees. Because when the State deviates from constitutional protection, it loses its essence and its reason for being, also losing its power to impose on society the obedience of a certain order. Thus, the citizen expects the State to act in safeguarding the collective interest and within the framework of the CN, but by preventing by law 27.541 the possibility of contesting or repeating what was paid in a customs tax liquidation, the citizen is deprived of the constitutional right to safeguard his assets, forcing him to accept a tax without the right to
to observe whether it is in accordance with the law or to be able to exercise a subsequent right of recourse; and all this as a coercive measure to be able to benefit from the benefit that the same law establishes regarding the extinction of the penal action. Because of this, it then turns out that the norm grants a benefit but under the obligation to renounce a right, nothing less than enshrined in the CN.
Likewise, the jurisdictional protection of fundamental rights represents the foundation of the rule of law. And constitutional rights and guarantees are an expression of the very dynamics of human rights in modern constitutionalism, understanding that the State does not grant rights, but rather recognizes them. For this reason, the State cannot assume the power to make a gracious concession, but rather has the duty to recognize and respect the rights and guarantees enshrined in our CN, and consequently it is the responsibility of the Judiciary in its role as protector of the constitutional order to safeguard the control of the constitutionality of the norms. In the particular case of what is set forth here, there is a specific affectation when denying the legitimate power of the taxpayer to be able to object or repeat a customs tax liquidation, without being able to review whether it complies with the law or is arbitrary. And this, as a basis for being able to enter the regime established by Law 27.541.
For this reason, it is appropriate to consider that the taxpayer has the possibility of an amparo action in order to protect his constitutional right, since the law requires him to waive the rights of challenge and recourse. This violates the right to property since the taxes arise from the assets of the citizen and also violates art. 18 of the CN, since by not being able to challenge the tax assessment or to recourse for the same, the taxpayer is deprived of the defense of his rights, something that is inviolable in the terms of article 18. In addition, said waiver is also equivalent to the acceptance of an imputation of tax debt, which implies a declaration by the taxpayer against himself, but in this case not by his own will but as a plain and simple imposition to terminate a criminal action against him; thus violating all the constitutional precepts linked to the protection of assets and the guarantee of the defense in court of the person and his rights. Especially since the same law 27.541 determines a period for the acceptance of the regime, which would be widely exceeded if the respective tax liquidation were challenged; but it happens that even accepting not to resort to a possible judicial expenditure with this, it is also not tolerable that subsequently the taxpayer cannot exercise the right of recovery in case of having to pay a sum that could be too onerous, which in turn would imply an unjust enrichment on the part of the State, at the expense of the money of the taxpayer prevented from legitimately defending his rights.
In such terms, the precept of this law that prevents any action of challenge or subsequent repetition on the liquidation of taxes to be paid, is clearly abusive and unconstitutional; and it would be enshrining the idea that the norms must be complied with even when it is improperly and thus, violating basic precepts of the preamble of the National Constitution, such as strengthening justice and consolidating peace. For his part, Dr. Lorenzetti has maintained that there is no possibility of exercising rights in an absolute manner, at the cost of violating any interest. The rules are born with a perimeter whose exercises cannot later transgress.. (LORENZETTI, Ricardo Luis, in “Civil and Commercial Code of the Nation. Commented”, Santa Fe, Rubinzal and Culzoni, volume I, 2014, page 60) And this must apply to the entire legal system.
It turns out that through the imposition of Law 27.541 indicated here, the objective in the execution of its legal power has been distorted, There is a profound incongruity between its purpose and the means or method used for it, distorting its essence and reason for being, thus causing a disproportionality between the intended objective and the means used for that purpose. This makes it clear that it is something arbitrary, the reason for which then becomes unfounded, becoming a barrier to the provisions of the law.. In consecuense, It turns out that such a normative provision is reviewable by judicial means, since it is a manifestly arbitrary act; and that although the State usually alleges the criteria of opportunity, merit and convenience for its acts, said criteria can never be left outside the control of legality by the Judicial Branch, without this implying the substitution of functions.Therefore, the judicial review of regulatory aspects of public administration becomes a classic control of legitimacy and, therefore, is not covered by those typical reasons of opportunity, merit and convenience that were taken into account at the time of the issuance of the rule.
As Lazzarani argues in The amparo trial, page 243 and following; We are faced with a real, effective, tangible, concrete and unavoidable damage, which causes certain damage and it is a current damage, because with the impediment to repeat the tax liquidation that could be arbitrary, a damage is caused that is valid, in open violation of rights and guarantees enshrined in the CN. And even if it is intended to enforce such imposition under a supposed legality, it must be kept in mind that any behavior, appropriate to an arbitrary administrative rule or decision, is infected with arbitrariness, since the rule on which it is based suffers from this vice. (Bidart Campos; Legal regime, p. 254); Arbitrariness is the opposite of moral law (Bielsa, The appeal for protection, p. 202) And no power to dictate rules is being questioned, but rather their reasonableness and legality, under the protection of our legal system and its normative hierarchy, for which, the effect of the measure provided by Law 27.541 with its intended objective must also be considered.
In accordance with the above, I understand that the express provision by which the waiver of any action or right is imposed as a requirement for compliance with the provisions of Law 27.541, as provided in its art. 9, is clearly unconstitutional.
By: Dr. Guillermo Sueldo
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