The president of the National Tax Court, Miguel Nathan Licht, considered that the new building in the City of Buenos Aires defines the way in which work will be done in the next three years. He responded to questions about the reforms he proposes to strengthen this technical body in order to provide the appropriate justice service that society currently requires.
Licht, who was elected president of the court three months ago, also considered what is “a reasonable period of time”, he spoke about the export duties and gave its reasoning on the impossibility of declaring the unconstitutionality of the laws.
From the new workspace in line with the new times and a closer relationship with society, Licht gave this exclusive interview to Aduana News:
-When you were elected, you said that “the TFN plays a transcendent role.” What is its importance?
-The National Tax Court (TFN) plays a transcendental role, since its legal jurisdiction covers most cases in which the exercise of tax and customs authority by administrative authorities is discussed. I recall that the Supreme Court of Justice of the United States, in a very valuable precedent, said that the collection of taxes is to the State what blood is to the human body. In this sense, I cannot help but point out that the TFN must maintain a delicate balance so that the blood of taxes does not clot in its courts due to the suspensive effect of the appeals and the delay in the substantiation of the cases, but it also owes the appellant (taxpayer) the possibility of an exhaustive study of his claims so that the due process is respected.
-How is the TFN organized? What advantages does the new headquarters offer?
-The TFN is an autonomous entity located in the organic structure of the public administration in the Ministry of Economy and specifically in the area of the Undersecretary of Public Revenue. In administrative aspects, the Ministry exercises a supervisory control as with any decentralized entity. In strictly jurisdictional aspects we do not receive any kind of instruction. The sentences of the Tax Court are issued in accordance with the legal conviction of its members.
In its organizational aspects, the court operates with a presidential unit and 7 chambers with 3 members each. The tax chambers have 2 lawyer members and 1 accountant member. In the case of the customs chambers, we are all lawyers. There is still one member to fill in each of the specialties. Fortunately, this situation is not comparable to other times in the Court when it had up to 10 vacant members.
Likewise, as a result of the latest reform to the Tax Procedures Law, a General Coordination was incorporated that deals with purely administrative matters.
The TFN staff consists of approximately two hundred and twenty people. This is a limited number for the enormous number of cases that the court is studying. The intention is to expand the staff because it is imperative to develop administrative areas that are necessary to achieve the definitive autonomy of the court. In particular, we want to develop a jurisprudence secretary to enable the dissemination of our rulings and incorporate technology that helps professionals find the material they need to make their presentations.
The new headquarters is a milestone. For a long time, the TFN has hoped to have its own home. We are almost nomads, as in the 60 years of history of the court, we have moved from one place to another. It is known that moving is traumatic. We hope that we will all be much more comfortable in the new building. The design of the offices, with open spaces and completely glassed offices, sets a paradigm with respect to our intentions to work towards the transparency that we aspire to.
- As president of the TFN, what is your proposal to improve the justice service? What means are required to speed up the review of appeals?
-Improving the justice service depends, fundamentally, on material aspects and legal reforms. Many of the changes I want to introduce as President of the Court are inspired by the experiences I lived as Clerk of the SCJN, especially under the administrations of Ministers Enrique Petrachi and Ricardo Lorenzetti. If I could emulate in a smaller percentage the profound transformations they made, I would be very satisfied. I emphasize the need for the courts to get closer to civil society. The paradigm of the judge standing on a pulpit and maintaining a sideral distance from the person seeking justice is being reviewed. All operators who administer the justice service are ultimately public servants and must be accountable for our actions. It is urgent that we express ourselves with greater clarity and publicity. Among the proposed objectives is the incorporation of the electronic drawing of files, the publication of statistics of all kinds and promoting the use of clear language in sentences. In this regard, I strongly urge my colleagues not to give reports of their rulings in which the issues being discussed are not simply understood. We are giving a new imprint to the Court's communication through the use of social networks. In recent days we began to use our Twitter account to disseminate the Court's most recent rulings. We quickly increased the number of subscribers to almost 3000 followers. Interaction with followers allowed us to realize that many are extremely confused about what the Court is and its powers.
In relation to regulatory reforms, the aim should not be to seek speed as the primary objective. Being fast is not the same as acting promptly. We have to provide the service of justice in reasonable times, but we can never forget that we have to act with balance and make a thorough examination of the issues raised by the parties.
It is essential for us to improve the remuneration of the staff that assists us. It is a fundamental aspect in order to forge a professional career and to retain the staff of professionals. Our staff is trained in a very specific subject that is highly valued by law and accounting firms. We are a breeding ground for talent, but we compete at a disadvantage for the salaries paid in the Judiciary and in the firms. Indeed, although the TFN is a court that administers justice, the staff is not assimilated to the Judiciary. This is not good for the public interest and we are working on it with the Undersecretary of Public Revenue.
-Could export duties set by the PEN in 2021 be applied to exports officially declared in 2022?
-It goes without saying that I cannot give an opinion because this is a matter that may eventually reach the courts. However, I do not want to leave you without an answer and I will try to give you one by making a merely academic description of the matter. For now, it can be seen that there are two opposing views. Some jurists consider that the regulations established by the Executive Branch are executive, that is, regulations that support the law and are governed by article 99, section 2 of the National Constitution. These executive regulations, in principle, do not expire over time. The jurisprudence of the Court says that executive regulations, to the extent that they conform to the spirit of the law passed, remain and have the same hierarchy as the law. Meanwhile, the other view considers that they are not executive regulations but delegated regulations, which are subject in their validity to article 76 of the National Constitution. If we start from that position, we will find a delegating law that must comply with the requirements of article 76 of the Constitution to pass the constitutional test. That is to say, in order for delegating laws to be valid, they must comply with certain requirements: they must pertain to specific matters of administration or emergency, the powers must be granted for a certain period of time and other formalities. As a result of these delegating laws, there are delegated regulations. Within them, we have two guidelines: one considers that delegated regulations have the nature of a legislative act and the provisions common to laws apply to them, so the delegated regulations will remain in time until another law expressly provides otherwise. Under this temperament, the delegated powers may well expire but without the product of those delegated powers disappearing from the legal system. Meanwhile, another view maintains that the delegated regulation has its fate linked to the delegating law. So, if the delegating law were to disappear from the legal world, the same would happen with the delegated regulation. The answer will depend on the position in which the jurisprudence is to be framed.
-What do you think about reducing the limitation period from 5 years? Would this help to safeguard the guarantee of a reasonable period? What is the correct reasonable period?
-The problem regarding the reasonable time, in my opinion, arises from a mistaken interpretation of the grounds for suspension and interruption of the course of prescription. In the abstract, it is very difficult to maintain that the time period established in the Tax Procedure Law or in the Customs Code is unreasonable. But at least in customs matters, based on the interpretation assigned to the Code, since it is not necessary to notify the order to open the summary for the effects of suspension and interruption of the course of prescription to occur, administrative procedures can last decades. It seems to me that a future reform should shed light on the issue because it is not reasonable that customs litigation cases can be sentenced with more time than very serious crimes in the criminal code.
-The TFN has ruled on the unconstitutionality of regulations in recent rulings. What is its basis for this power reserved to the Judiciary?
-The members of the TFN exercise a jurisdictional function, but we are not judges. The only judges are those who went through the selection process of the National Constitution (competition held by the Council of the Judiciary, shortlist of the Council of the Judiciary, election of the President with the approval of the Senate). However, there are colleagues who consider it unconstitutional that the people who must administer justice are prohibited from these cognitive aspects. They even consider them contrary to the international covenants on Human Rights. Faced with this, in the ruling "Petroquímica Comodoro Rivadavia" I stated that I did not agree with this solution. First, because there are countries that are signatories of the international covenants on Human Rights, especially the American Convention on Human Rights, as is the case of Colombia, which has concentrated control of constitutionality. That is, it designates the control of constitutionality to a specific body. But in most cases there are situations that do not need this to find a fair solution. A recent SCJN case cited the payment of compensation to a disabled person in relation to the consolidation law. The Court, with Carlos Rosenkrantz dissenting, said: “Here I do not have to declare constitutionality. Here I have to harmonize.”
A valuable article that was incorporated into the Civil Code states that judges must resolve the cases presented to them with the baggage of principles and norms that assist them. Instead of declaring the unconstitutionality of this consolidation law, they should consider what the legislator did not see for that specific case.
-What is your opinion on transferring the TFN from the jurisdiction of the Executive Branch to the Judicial Branch? What benefits would it bring to the taxpayer?
-Having a Tax Court within the Executive Branch is not an Argentine creation. It is present in many countries such as the United States, Brazil, Panama, Spain, Colombia, Ecuador, etc. In Latin America it is a solution that is present in almost all countries. What needs to be done with the TFN is to strengthen it and not suppress it. First, because accountants could not be present in the Judicial Branch and the vision they provide us is very significant. Secondly, because the TFN is an administrative court and not a jurisdictional one. This gives it abilities that a judge could not have, especially in the search for objective legal truth. There is a softening of the principle of equality of arms within the scope of an administrative court. Rather, the TFN should have more chambers and more powers, such as, for example, in Social Security. Without a doubt it would allow the Judicial Branch to be relieved so that it can deal with other matters. Nobody escapes, moreover, that tax and customs matters are very complex and often require an interdisciplinary approach.
Challenges of the 21st century
-What changes should be made to the Customs Code?
-It would be pretentious to exercise jurisdictional functions and to arrogate legislative functions to myself. But I think it is necessary to analyze what is happening with legal experience in Argentina and the lack of training in foreign trade, mining activity, the countryside, in short, in everything that generates wealth. Before reforming the Customs Code, we must change the legal training of our students, lawyers and ourselves. We must have more empathy with the requirements of Argentina. The country needs a lot of foreign trade, the countryside and natural resources.
-How can we improve the transparency of the TFN in a context of lack of trust?
Society is constantly changing and the TFN must adapt to this. All changes generate discussions and anger for those who want to maintain the status quo, but a majority of members are convinced that the TFN should be given the place it deserves, and that its existence and importance should be made known. We want our work to be known. It is important for all of us who make up the ecosystem of the Court: litigants, attorneys, sponsors, defenders, the public prosecutor, accountants and for all of us who perform functions in the Court.
Could you please share some thoughts on gender equality in the TFN?
-The TFN has a great diversity. Most of the staff is female, but there is a particular situation. As I mentioned before, salaries are very low and it is observed that women give up positions in law firms, valuing other opportunities offered by the Court. Many of them joined the TFN at a very young age. Then they went to law firms, but when they experienced motherhood they could not continue with their private careers due to the demand for hours, so they found in the TFN the environment to develop their vocation of imparting justice, with low salaries and a limited career. We lack a higher level, like in the Judiciary. We are also committed to applying the Micaela Law and that all of us who perform functions in the Court comply with the mandatory course provided by law. I personally did it and it helped me to understand and notice some deep-rooted behaviors that deserve attention.
-Is there anything you would like to add?
-In line with what was initiated by my predecessor in office, Accountant Rubén Marchevsky, I would like to add that we will try to get closer to civil society and continue to produce the changes that depend on us to provide a better justice service. If there is something that keeps us awake at night, it is having empathy for how they see us.
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.
