Although the court ruling is novel – “Danes SRL c/ Poder Ejecutivo Nacional s/ Amparo Ley 16.986” File No. FRO 83479/2018 – which recently ruled on the unconstitutionality of decree 793/2018 regarding the application of export duties, many lawyers They have expressed their opinion, almost immediately after the decree came into force, on its illegality, based on the elements that the Justice Department has now ruled on.
In order to do so, it is not the intention of this note to make a further analysis of the various and different scholars of customs law who have already expressed their opinions in relation to this issue, which undoubtedly is based on the constitutional basis of the system of legality, which imposes absolute and indisputable powers on the National Congress in this matter. tax.
But we do find it interesting to highlight something that the Court's ruling rescues and that conceives a fundamental principle in favor of citizens: "swift justice without unnecessary delays in the face of clear facts of manifest illegality", as would be the case of the application of export duty by the PEN vitiated by illegality.
Repetition procedure
It should be noted that when seeking the refund of a customs tax, the procedure channel regulated in article 1068 of the Customs Code is applicable, through the so-called "repetition procedure".
This process implies the review by the "active subject" itself - General Directorate of Customs - of the refund request generated by any "passive subject" - importer / exporter - in situations that merit the treatment of a claim review for having paid "too much" of a tax and that due to factual or legal grounds correspond to its liquidation and payment in favor of the "passive subject".
The novelty of the ruling is that it allows for the direct review process (in the case of a recent ruling by way of amparo), considering that the control of constitutionality, which constitutes the first and main mission of Justice, should not be delayed.
Indeed, the ruling rescues “our highest court expressed in the leading case “Camaronera Patagónica” that “…the factual and procedural arguments raised by the appellant do not have sufficient entity to refute the grounds given by the a quo, nor to delay the control of constitutionality that constitutes the first and main mission of this Court (conf. Fallos: 318: 1154; 323: 2256; 326: 4251), especially when the amparo is admissible if its use has not reduced the possibilities of defense of the defendant as to the extent of the discussion and the evidence (Fallos: 320: 1339)” Cfr. “Danes SRL c/ Poder Ejecutivo Nacional s/ Amparo Ley 16.986” File No. Fro 83479/2018 entered before this Federal Court No. 1 of Rosario – 22.03.2019 –
This ruling provides citizens with the ability to rely on a justice system that is aligned with the needs for a rapid response to events that do not merit entering into a dilatory process, such as the channel of repetition through administrative means, so that later and only after the customs resolution, the taxpayer can finally face the person who must issue the vital ruling based on illegality.
Especially since the administrative review imposed by the procedure for repetition regulated in the Customs Code prevents any pronouncement on claims of unconstitutionality of regulations. Obviously, because the power of constitutional control is proper to the Justice and not to the administrative judges.
In this context, if a request for tax refund is based on the fundamental basis of the illegality of a rule that requires its application, it is evident that requiring entry into an ordinary process such as the repetition process before a judge who does not have the authority to resolve such a matter – unconstitutionality – is violating the guarantee of due process and defense in court, in terms of the right to a fair trial by a competent judge.
Certainly, it is the opinion of the undersigned that in cases such as this one, where the importer/exporter seeks the return of a tax based on a reason aligned with the constitutional questioning of a norm, it should be directly channeled to Justice, without having to rely on the unnecessary, dilatory and unfounded intervention of the repetition procedure through administrative means.
Otherwise, the due right of defense would be coerced by the imposition of an ordinary process that disregards the constitutional powers to judge matters of illegality.
Challenge Procedure
In this same sense, those who intend to raise questions regarding the requirement of customs duties that are required by virtue of a regulation that may be unconstitutional and opt for the challenge procedure regulated in art. 1053 of the Customs Code, will also be affected in the guarantee of procedural due process and will unnecessarily suffer a delay as a result of a process that would be improper.
The aggravating factor is that, while waiting for the administration's ruling, they would add interests that should not be subject to demands before a final ruling by the Justice, given that these interests of a moratorium spirit prevail during the duration of the discussion process with a suspensive effect until a definitive resolution, but are seen as unfair and unfounded in the time that the unnecessary process of the administrative route has lasted, given the grounds set out above.
Customs and its duty to act
In short, Customs itself would have to embrace the pronouncement of Justice regarding this principle "not to delay the control of constitutionality that constitutes the first and main mission of Justice" and in the face of requests for refund and/or challenges to customs duties based on the unconstitutionality of a norm, it should issue an immediate and general resolution to enable the judicial route due to its incompetence.
This would help to avoid unnecessary delays, both to the detriment of the taxpayer and of the administration itself and its staff.
By: Dr. Guillermo Felipe Coronel, Member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
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