Introduction
Why do we have to argue over and over again about issues that have already been resolved? Are there still debates about the powers delimited in arts. 75 and 99 of the National Constitution, for the Legislative and Executive branches, respectively?
These are issues that have already been written and said almost in abundance, however, once again we must put it in black and white. Once again it is necessary to highlight the light among the shadows of unconstitutionality, in an exercise that is often exhausting, but is necessary. And this is so, because despite so much that has already been said about the unconstitutionality of regulating taxes through Decrees and administrative Resolutions, even with a resounding ruling such as that of Camaronera Patagónica in 2014, a practice that goes in the opposite direction continues.
The case
On December 30, 2024, Decree 1140 was published in the Official Gazette, by means of which the Executive Branch arranged for the extension of a 3% rate for the Statistical Tax, which is levied on the final destination of imports for consumption. This regime expired on December 31, 2024 and by means of the aforementioned Executive Decree, its permanence was extended until December 31, 2027. That is, without even foreseeing that Congress may determine its validity by the appropriate means, for the next 2 and a half years.
It should be remembered that this rate was established by Law 27.541, a regulation that provided in its article 49, not only to set the statistical rate at 3%, but also a term of validity until December 31, 2021. Based on this, the Executive Branch was the one who determined the different extensions of validity; first, by Decree 1057/2020 until 31.12.2021/901/2021, then by Decree 31.12.2024/1140 until 2024/31.12.2027/27.541 and now, by Decree XNUMX/XNUMX until XNUMX/XNUMX/XNUMX. In all cases, without considering that the National Congress, when issuing Law XNUMX, established an express term for its validity, and on the other hand that we are dealing with a tax, which imposes in these cases the intervention of whoever has the constitutional power in such matter.
And it is a tribute, nothing more, nothing less.
It is a tax whose purpose is not to collect taxes, but rather as compensation for a service provided by the State, through customs activities aimed at registration and a system of statistics of foreign trade. The taxpayer turns out to be the operator: in the case mentioned in the Decree under consideration, it is the importer. The nature of the tax in question turns out to be "a tax category also derived from the power of the State to rule, with a legal structure analogous to the tax and from which it differs only by the factual assumption adopted by the law, which in this case consists of the development of a state activity that concerns the obliged party"(1)
On the other hand, as expressed in the work Código Aduanero Annotado, by Drs. Guillermo Felipe Coronel and Guillermo J. Sueldo, “In our opinion, the statistical rate meets the requirements that justify it being considered a tax, which is seen by the fact that it is settled in the same terms as the import duty. It also has a scope for all customs operations, whether import or export, regardless of whether they are definitive or suspensive, without prejudice to the possibility of establishing partial exemptions over time for some of these. On the other hand, a direct compensation from the State to the subject obliged to pay the tax is not conceived, exposing the absence of a specific and concrete compensation, as any rate must show.”(2)
Having anticipated this, the Decree in question has resolved “ARTICLE 1.- The THREE PERCENT (31%) rate for the statistics fee provided for in article 2027 of the Law is hereby extended until December 3, 762, inclusive. No. 22.415 (Customs Code) and its amendments, which taxes definitive import destinations for consumption” (3)
For its argument, the same Decree mentions that such decision has been taken "in use of the powers conferred by article 99, paragraph 1 of the NATIONAL CONSTITUTION and by articles 764 and 765 of Law No. 22.415 (Customs Code) and its amendments.”
But it turns out that the cited section of the National Constitution only mentions that the President of the Nation is the supreme head of the Nation and responsible for the general administration of the country, but it seems that sometimes this is confused with interpreting that it is a supreme being that can arbitrarily dispose of the assets of people, because that is what is involved when we talk about the imposition of taxes. Having said this, it covers all governments.
Strikingly, section 3 of article 99 of the National Constitution, which expressly prohibits the Executive Branch from issuing regulations on taxes, has been overlooked.
Conclusion
The rules that are dictated in the area of customs and international trade must necessarily have the solidity of the principle of legality, those delegated being subordinated, according to the guidelines that the National Constitution itself expressly determines, plus the expressions of reasons of the Constituents, the Doctrine and Jurisprudence, as enriching guidelines of such an important subject, which, in addition, implies the necessary legal security that is so often demanded.
As long as there is no law enacted by the National Congress, which enables the Executive Branch to proceed with the determination according to the margins that the Legislative Branch grants it, both in relation to the due rate and the period of validity, there is consequently no legality that supports the installation, restitution or extension of any tax, such as the case of the Statistical Tax in question.
It is therefore important to remember what the Supreme Court of the Nation has already resolved, in the sense that "The principle of legality or reservation of the law is not only a formal legal expression of taxation, but constitutes a substantial guarantee in this field, to the extent that its essence is given by the representativeness of taxpayers. In this sense, this principle of constitutional roots covers both the creation of taxes, rates or special contributions as well as modifications to the essential elements that make up the tax, that is, the taxable event, the rate, the subjects affected and the exemptions. (Rulings: 329: 1554). Likewise, the highest Court of the Nation indicated that, “The principle of the reservation of law in tax matters also does not give way if action is taken through the mechanism of legislative delegation provided for in Article 76 of the Constitution. Indeed, this Court has also been emphatic in holding on this point that "there can be no doubt that the substantial aspects of tax law have no place in the matters for which the National Constitution (art. 76) authorizes, as an exception and under certain conditions, the legislative delegation to the Executive Branch."(4)
It is not possible to continue debating that the taxes paid for import and export operations have a constitutional legal content, because that is the case. And art. 17 of the CN that regulates the right of property, recalling that it is a first generation right and in addition to the so-called explicit rights, establishes that "s“Only Congress imposes the contributions expressed in Article 4”;That is to say, import and export duties can only be determined by a law of the National Congress. And this does not escape the tax criteria of the so-called Statistical Rate.
On the other hand, since there are also contradictions between laws and resolutions with constitutional provisions and treaties, the latter rules must be chosen, leaving aside the laws and regulations issued in open contradiction with the provisions of the CN and International Treaties. In the case that concerns us in this note, clearly the Resolution issued by Decree 1140/2024 is in open collision with the National Constitution, since it is a provision that
It establishes a tax imposition, which in our opinion was rendered ineffective upon expiration of the term of validity established at the time by Law 27.541, with a total absence of constitutional guarantees and even international agreements.
Given this situation, there is a possibility of a proper legal claim in the application of the rule that is questioned here regarding the extensions ordered by the Executive Branch.
- Berkley Cause Failures 323:3770
- Commented Customs Code, Volume IV. Ed. Servicop. Page 522. Authors Guillermo Felipe Coronel and Guillermo J. Sueldo
- Official Gazette. Decree 1140/2024
- Errors 326:4251
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
