Much could be written about the National Tax Court, after 58 years of its creation. With great lucidity, Judge Pablo Garbarino reveals what this body is. Economic or Judicial? And explains why it is little known. In a one-on-one with Customs NewsHe speaks with passion, he thinks about every word. He dazzles with his answers on every court topic that is proposed to him. A mind that does not remain silent about the need for debate on what court we want.
Pablo Garbarino
Question: What is the National Tax Court?
Answer: The National Tax Tribunal (TFN) is a “special” court; I consider it to be a court of justice. It is the only one specialized in customs and tax matters with territorial scope throughout the country. Together with the Supreme Court of Justice, it is one of the few courts with these characteristics. In addition, the National Tax Tribunal is unique because it is divided into two areas: customs and tax, where lawyers and accountants can act. It began to operate in 1960 during the presidency of Dr. Arturo Frondizi and to this day, the TFN has maintained jurisprudence, respecting the guarantees of taxpayers in tax and customs matters.
Question: How is the National Tax Court composed?
Answer: The TFN is made up of 7 chambers, each of which is made up of 3 judges who are also called members by law. In tax matters there are 4 chambers with two lawyer judges and one accountant. In customs matters, there are 3 chambers made up of 3 lawyer judges. Law 15.265 of 1960 established that the TFN should have a presence in the provinces. There was an idea of federalizing the court, following the model of the “Tax Court” in the United States, although currently the TFN is based in the City of Buenos Aires but has not yet been extended to the provinces.
Question: Is it an administrative or judicial court?
Answer: In most books, the TFN is presented as an “administrative” court. I personally hold the opposite position: it is a judicial court even though it is not part of the Judicial Branch of the Nation. It cannot be an “administrative” court even though it is under the supervision of the Ministry of Finance. But this supervision is merely administrative, not over the jurisprudence of the TFN, because the judges that comprise it have three characteristics: competence in customs or tax matters, independence and impartiality. Therefore, one must be careful when considering it an administrative court, especially because the administrative supervision is carried out by the Ministry of Finance, while the AFIP, which is an autonomous entity within the jurisdiction of that Ministry, is always one of the parties in the process, whether it is the DGA or the DGI. The concept of impartiality could be in crisis. I consider it a judicial court, even though it is not a part of the PJ, a formal matter, and by declaring it in this way it has the powers of the judicial courts. For example, it can dictate precautionary measures, although some chambers understand that it can and others that it cannot. It can control the constitutionality and conventionality of the laws. The TFN is not limited in its broad, full and effective competence. In addition, it has two characteristics that no administrative court has: the judges regulate fees (something that is not proper of an administrative court) and they dictate sentences, they do not dictate administrative resolutions. It is basically governed by two laws: in customs matters, Law 22.415, Customs Code, applies, and in tax matters, Law 11 685, Tax Procedure Law. For all matters not contained in these regulations, we apply the Civil and Commercial Code of the Nation or the Code of Procedure in Criminal Matters. If it were an administrative court, we should apply the law of administrative procedure. If it were an administrative court, we should apply the law of administrative procedure. I think that we should abandon the idea of an administrative court. The best example is the Supreme Court of the United States, which in 1991 issued a “Freytag” decision to deal with the legal nature of the Tax Court, which was the main source of the Tax Court at the time of its creation. What did the Supreme Court of the United States say? That the Tax Court exercises a portion of the judicial power to the exclusion of any other function and in a manner similar to the exercise of the federal courts of that country, so it is endowed with an exclusive judicial role independent of the Legislative and Executive Powers. So, I understand that the TFN follows the same fate of being endowed with an exclusive judicial role. From that time on, the Tax Court became judicial and I understand that the TFN will one day do the same.
Question: Is TFN important?
Answer: The TFN is very important in customs and tax matters because it is the only court with exclusive jurisdiction. In addition, it has an essential guarantee in favour of the taxpayer. If an importer or exporter files an appeal before the TFN, he does not have to pay the tax first. That is important. I think that not enough is known about this court.
Question: Why is there no talk about TFN?
Answer: The TFN is not discussed because the two professions with the largest number of representatives in the country coexist in the organisation: lawyers and accountants. As the TFN has worked quite well in the coexistence of these two professions, perhaps it is not wanted to be discussed in order not to enter into relevant issues that are dealt with in other organisations such as the Bankruptcy Trusteeship. The TFN must be disseminated, especially in the provinces, where it is unknown.
Question: What do you think about the initiative to incorporate counters in the customs hall?
Answer: This Government tried to incorporate a customs accountant, but there were three previous projects. All with the same negative result. I understand that, like any important project that comes to transform an institution, where two professions coexist, it must be debated beforehand. We must define what type of court we want, where we want it located, what jurisdiction we want for the tax court, because if the court is going to act in Buenos Aires, it must act in all the provinces. I do not agree with the underhanded and unconsulted approach of the project. I am in favor of debate.
Question: Do you think that the TFN should be an issue on the Government's agenda?
Answer: Yes, I think that the type of court we want should be debated. The issue of taxes is important for society. Judges resolve the tax issue, so it is an essential issue. The tax conflict has existed since the beginning of history. In revolutions, one of the triggers is of a tax nature. On the other hand, I see that it is an issue that is not debated.
Question: What are the issues that taxpayers most demand?
Answer: We have two types of cases. One is the amparo linked to the delay of the Customs in resolving the requests of the citizens and they come to the TFN seeking that we order the Customs to issue a ruling regarding a certain legal situation. In terms of substance, the TFN has two major issues: tax and sanctions.
Question: Is the TFN expeditious? What suggestions do you have for improvement?
Answer: The TFN is issued in matters of amparos; the rest, not as we would like. In human resources we are in a very bad situation. Last year 27 people left for having better financial offers, almost none could be replaced. As for the rest, we began to use, in my room, the doctrine of the reasonable period of processing of the process, following a jurisprudence of the European Court of Human Rights and the Supreme Court of Justice of the Nation, both in tax and customs cases. This doctrine of reasonable period indicates that trials have to be processed within a reasonable period. For that, they must meet four conditions, which are summarized in what type of procedure it is, what has been the attitude of the parties, how complex is the evidentiary procedure and what is the attitude of the judge, active or reluctant to process it quickly. The processing should not exceed five years, because the matter is tax and the deadlines are five years. I insist: there must be a debate. As William Shakespeare said: “It is not enough to have done things well when, in addition to being well, you should have done them quickly.”
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Profile of Pablo Garbarino (51 years)
* Member of the National Tax Court
* Father
* Amateur reader
* His advice: “Read the classics, always”
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