Following the issuance of Decree 661/19, which establishes the settlement of foreign currency in the local exchange market by exporters as a prerequisite for the payment of refunds, several queries were received regarding the legality of said regulation issued by the Executive Branch.
Without going into political considerations, since they are not the subject of the analysis in question, it is appropriate to address the issue based on these queries from exporters regarding the refund regime. This is regulated in the Customs Code in Section X, specifically in arts. 825 to 833. Within this article, art. 829 mentions powers granted to the Executive Branch, such as determining the goods and services included in the regime, the applicable rates, the terms and conditions and other requirements and formalities to be fulfilled by exporters.
It is a complex issue considering that it involves taxes and the total or partial restitution of some of them through this regime, the purpose of which is stimulate exports. Some issues then come into play that may undermine legal security and the rights enshrined in the National Constitution; since logical reasons of economic policy can never be used as an excuse to violate constitutional rights.
First of all, I consider it appropriate to consider that In tax matters, the principle of legality must be followed, bearing in mind what is expressly stipulated in arts. 4, 17, 51, 75 paragraph 1, 76 and 99 paragraph 3 of the CN. For this reason and with greater legal solidity since the 1994 reform, the delegations of powers to the Executive Branch on tax regulations lack constitutional support. Especially when it comes to, as in the case at hand, operations already carried out or made official in which the exporter who complied with the legal requirements has an acquired right to collect the refunds. In such specific cases, the change in rules clearly represents a constitutional violation.
Regardless of this consideration, which could be remedied with the intervention of Congress, A regime that is legally accessed cannot be subject to untimely modifications and arbitrary conditions, since in this way the regime is altered, violating the legitimate expectation of a legal right. Even more so when the State's counterpart for the return of taxes usually generates entry into a labyrinth for the taxpayer, who is often forced to initiate legal actions to obtain the collection of these refunds, accruing interest in favor of the taxpayer that must then be borne by the National Treasury.
In short, no condition, even one that is legally asserted, can ever be used as extortionate, distorting the regime and violating rights and guarantees enshrined in the National Constitution, taking into account also the principle of reasonableness of legal norms. This is so as long as It is not enough for a rule to be issued in accordance with established formalities, but it must also conform to constitutional principles., so as not to violate the cardinal value of justice.
Bidart Campos has argued that the principle of reasonableness implies the exclusion of all arbitrariness or unreasonableness in the exercise of the prerogatives of public powers (Bidart Campos, Germán. Constitutional Law. Ediar. Volume II, pages 118/119).
Thus, a right that is diminished by regulation (such as a Decree) expresses the exercise of a power carried out in an unreasonable manner. And although more doctrinal and jurisprudential precedents could be cited regarding the unreasonableness of regulations, there is no doubt that this is so insofar as the means used for the end sought establishes a clear inequity by colliding with constitutional rules, thus resulting in contradiction with its principles, its values and its articles.
By: Guillermo J. Sueldo, Attorney at Law
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