Given the measures adopted by the government, which include the incorporation of taxes in customs matters and the modification of guidelines on some of them, it is appropriate to provide conceptual clarity regarding tax legality in our legal system.
In our legal system, the supremacy of the National Constitution and International Treaties They are the supreme law of the nation, to which all other norms of lower hierarchy, such as laws, decrees, resolutions, etc., must submit. In other words, this supremacy establishes a hierarchical order in which the highest in the pyramid subordinate the lowest and, in a harmonious conjunction, all must submit to the Constitution. If this subordination is ignored, then we are faced with a vice of legality that we call unconstitutionality.
In his work entitled Introductory Notes on Law (Volume III, page 70) the teacher Carlos Nino states: “Following the recognition criteria used to identify the basis of our current legal system and what the rules of the system itself provide, the hierarchical structure of our legal order could be diagrammed as follows: National Constitution, International Treaties, National Laws, Decrees of the National Executive Branch, Ministerial Resolutions, Municipal Ordinances, etc. We have said that one rule is superior to another when, in the event of a conflict between the two, the validity of the first is maintained at the expense of the validity of the second.
As we see, such a principle is based on a relationship of subordination of the entire legal system to a higher standard that lays the foundations of our legal and political system, without which there would not even be a guiding order, to such an extent that the Executive Branch can never alter the spirit of a law when regulating it.
Following this, our National Constitution determines in its art 4"The federal government provides for the expenses of the Nation with the funds of the National Treasury, formed from the proceeds of import and export duties; from the sale and lease of nationally owned lands; from the income from the post office; from other contributions that the general Congress imposes equitably and proportionally on the population, and from the loans and credit operations that the same Congress decrees for emergencies of the Nation or for public utility companies. And article 17 in one of its paragraphs says: “Only Congress imposes the contributions expressed in Article 4” Furthermore, Article 52 establishes that it is the Chamber of Deputies that is exclusively responsible for dealing with tax laws as the chamber of origin, and Article 75 (powers of the National Congress) in its first paragraph establishes Congress as having the power to legislate on customs matters. And the Constitution itself excludes the Executive Branch from issuing Decrees of Necessity and Urgency in tax matters.
It is clear then that even in cases of emergency, It is the responsibility of the National Congress to impose taxes on imports and exports.. Even though the Customs Code provides that the Executive Branch may tax such rights in certain circumstances, since two norms collide and the one with the highest hierarchy is the National Constitution.
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