The variation in the interest rate is a component of fundamental importance when determining a customs debt, especially after a final resolution in a process that has taken a long time to define whether the customs tax requirement is correct or not.
Currently, there is a different compensatory and punitive interest rate depending on whether the debts are in pesos or dollars. This would seem to not cause any inconvenience in the provision of this type of component to reach the liquidation of the taxes owed. However, the problem arises when establishing interest during periods in which this disparity did not exist between debts in dollars and in pesos.
Regarding the particular scheme of the application of the rate, imposing the use of the one in force at each stage, beyond a new rate, perhaps lower, that may correspond to the moment of proceeding to cancel the debt, what is indicated by the Dr. Miguel Sebastian Licht[1], who recently in a judgment of February 16, 2023 issued by the Tax Court of the Nation in the case "Basf Argentina SA s/appeal", file No. 39.933-A, proposed the reduction of the interest rate to the percentage stipulated in Resolution 598/2019 for debts expressed in dollars (that is, 0.83% monthly), to be applied to the differences in taxes for the period accrued from 10 days of the notification of each charge. In this sense, the Tax Court member considered, based on his arguments, that the rate established by Res. 598/19 should be used for all those sections in which interest is imposed, in order to mitigate the applicable interest rate. To such event, we transfer the grounds on which he supported his position, clarifying that such position was not supported by the associate judges -Dr. Claudia B. Sarquis y Dr. Hector Hugo Juarez-, also detailing the arguments for the refusal.
Position of Miguel N. Licht[I]
“As can be seen, Resolution No. 598/2019, effective as of 01/08/2019, while it does not modify the compensatory interest rate for debts in pesos, it does so for customs debts in dollars. In this case, it establishes that the applicable interest rate will be 0,83% “when the obligations in question are expressed in US dollars or must be paid according to the amount of categories or other similar concepts in force on the date of their actual payment.”
“That being the case, and in relation to the possibility of mitigating the applicable interest rate, I note that it could be done without declaring the unconstitutionality of the applicable regulation and without the need to violate the procedural rule that limits the jurisdictional powers of this jurisdictional administrative body. Indeed, as I said when ruling in the case: “PETROQUIMICA COMODORO RIVADAVIA SA v. DGA s/appeal”, EX-2020-15395348- -APN-SGASAD#TFN (judgment of 18/02/21), this court cannot declare the unconstitutionality of a law by assimilating itself to the judges of the Constitution and jumping with interpretive games the maxim that imposes the submission of the administration to the law. However, I also noted that this legal obstacle did not restrict the possibility of resolving the case submitted for decision through a fair weighing of the applicable principles and without the need to declare the unconstitutionality of any rule."
“In this order of ideas, I emphasized that the legal limitation was exclusively related to cases that demanded a solution through a subsumption of the facts in the applicable rules. I added that only in cases of absence of substantial complexity, where the control of constitutionality should be direct, could the case not be resolved except through a declaration of unconstitutionality, which I was prohibited from making.”
“Conversely, I noted that a declaration of unconstitutionality was not necessary if the resolution of the case required resorting to the weighing of values, principles and norms that had an impact on the situation under examination. Thus, recently, on April 30, 2020, in the judgment issued in re “C., JC v. National State – Ministry of Defense – Army s/ damages and losses”, EDCMXIX-139, Administrative Law Journal, May 2020 – Number 5, the Supreme Court declared inapplicable the regime for the execution of monetary sentences against the National State, regulated in art. 22 of Law 23.982, with respect to the credit of a person over 70 years of age, disabled, and with serious health problems. The Supreme Court did so by finding that the plaintiff's case was not normatively exempted from the general regime for the cancellation of unconsolidated credits against a public sector body, which involves a series of procedures and waiting periods for their collection, considering then in the main vote the situation raised as an "unforeseen case" that, for reasons of equity, should be resolved by applying analogous rules. As far as it is of specific interest here, it should be noted that the main vote (signed by Drs. Maqueda, Lorenzetti and Rosatti) expressly and intentionally avoids declaring the unconstitutionality of art. 22 of Law 23.982, even as regards its application to the specific case. It is clearly significant that in this new pronouncement the Supreme Court chooses to depart from the declaration of unconstitutionality and leans directly towards the inapplicability of the law in the specific case.
“In this interpretative framework, it must be considered that the Supreme Court has done nothing other than ignore the applicable rule when it occasionally leads to an unfair result in its specific application to a particular case, based on its particularities, sometimes unforeseeable for the legislator himself. In these cases, it is appropriate to ignore the letter of the rule and prioritize the spirit of the legislator, resolving the case as it would have done if the circumstances of the case had been represented, even when this implies leaving aside the text of the normative provision applicable to the case.”
“Thus, based on the foregoing, and in accordance with my opinion expressed in the case “ASEGURADORA DE CRÉDITOS Y GARANTÍAS SA v/DGA”, I must consider the manifest exorbitance of charging an interest rate of 3%, 4,5%, 3,76% or 4,73% per month applied to a foreign currency updated on the day of payment by the current exchange rate (Case “ASEGURADORA DE CRÉDITOS Y GARANTÍAS SA v/Dirección General de Aduanas, s/recurso de engaño (TF. No. 39.770-A)”, Sala F, judgment of 13/09/2021).”
Position of Claudia B. Sarquis (supported by Héctor H. Juárez) [ii]
“I disagree with the interpretations regarding the interest rate applicable to taxpayers who must pay these customs debts in dollars, as they propose to mitigate the legally applicable rate by “ignoring” the regulations and leaning towards the inapplicability of the law based on a jurisprudential precedent.”
“I base my difference of opinion on the need to respect the rates established by each regulation, according to the time in which they came into force. I consider that in this area - administrative jurisdiction - it is forbidden to fail to apply the Resolutions that are opportunely relevant, even to try to avoid a result that is presumed to be inequitable (but whose confiscatory nature is not fully demonstrated in these proceedings).”
“In this regard, the Court itself has ruled in the case “Province of Santa Cruz” (Rulings 316:42), when it held that an interpretation that amounts to disregarding the legal text is not justified, if there is no debate and declaration of unconstitutionality.”
“On the contrary, and in accordance with the express wording of the regulations - from whose application I find no serious reasons to deviate - I observe that the intention of the Legislator at the time of having raised the rates, which were later modified by means of another Resolution, by which they became lower, tended at that time to allow the normal development of the State's purposes. This position was also upheld when the Supreme Court of Justice ruled: “It is justified that tax laws contemplate coercive means to achieve the timely satisfaction of tax debts whose existence directly affects the interest of the community because they weigh on the collection of public income; for this purpose, the application of higher interest rates is justified” (Rulings 316:42).”
“I also point out that the Supreme Court has not yet repealed or mitigated “per se” the rates that arise from the rules that specifically govern this matter.”
“As a consequence of the above reasoning, it follows that the DGA must in each case apply the current regulations according to the resolution that determines the corresponding rates, dictated by the competent authorities, as indicated in arts. 37 and 52 of Law 11.683 and in arts. 794 and 797 of the Customs Code (Law 22415) especially when its invalidity has not been declared by our Supreme Court of Justice of the Nation. Applying a different mitigation, foreign to the regulations, through this Court, in our opinion would imply ignoring the purposes taken into account by the competent authority, which legislated at each moment the rates applicable to this type of debts with the fiscal body. This, according to its own evaluation of opportunity, merit and convenience.”
“In this sense, it cannot be forgotten that the establishment of the interest rate applicable to tax credits is carried out on the basis of such criteria, which are not subject to judicial review, and it is only up to the judges to control the legitimacy of the actions of the administrative authorities, not being empowered to substitute themselves in the assessment of circumstances outside the legal field (SCJN; RULINGS 3 08:2246 and its citations 311:2128; 321:1252, espc. Consid. VII and its citations)…”. And much less, consequently, if it is a matter of Members of the Tax Court of the Nation, as in the case at hand.”
Comments
With respect to the considerations made by the members in their different positions for the application of the rate varied over time, we align ourselves with that maintained by Dr. Claudia B. Sarquis, which Dr. Héctor Hugo Juárez agrees with, in that the fixing of the interest rate applicable to tax credits is carried out by the competent authority based on criteria according to its own evaluation of opportunity, merit, and convenience, which would imply ignoring the purposes taken into account when legislating at all times the applicable rates, not being susceptible to judicial review, and it is only up to the judges to control the legitimacy of the actions of the administrative authorities, not being empowered to substitute themselves in the assessment of circumstances outside the legal field.
In the particular case of the rate set for tax debts settled in dollars, the issue turns out to have a substantial element different from that which may be set for tax credits in pesos. Indeed, even agreeing with what was pointed out by the members Sarquis and Juárez, it is certainly difficult to consider that the application of an equal rate for debts in pesos and dollars, based on evaluation criteria of opportunity, merit and convenience, is legally consistent. Given that such eventual weightings that may support the application of a rate on tax debts in pesos, do not warn of the possibility that they may be the same to supply the application of a rate in dollars. Which, in principle, is lacking in reasonableness, and therefore, we understand that jurisdictional control would assist in the act that imposes such a determination, being of a legal nature.
This is because – in our view – a rule intended for debts in pesos would be used for debts in dollars, which has not been the purpose of the regulatory framework. Consequently, its intended application for debts settled in dollars would be a discretionary act. It should be understood that the same criteria that have led, starting with Resolution 598/19, to set differential rates between debts in pesos and debts in dollars, show that, during the previous periods in which the same rate was applied for both types of debt, there being central differences in the value that each currency represents, they show that they were not defined for settlements in dollar currency. Which, if its imposition were intended, would have a confiscatory nature.
Thus, it is appropriate to carry out an analysis of the regulations as a whole, considering for the present study, the interests that refer to compensatory and punitive rates applied to customs tax debts, starting from a regulatory framework after the end of the convertibility law.
Resolution 110/2002[iii] It ordered to modify Resolution 1253 of September 30, 1998, of the former Ministry of Economy and Public Works and Services, which would set the rates of compensatory and punitive interest, provided for in articles 37 and 52 of Law No. 11.683, text consolidated in 1998 and its amendments, and those provided for in articles 794, 797, 811, 838, 845 and 924 of the Customs Code, imposing a compensatory rate of 4% monthly and 6% as a punitive rate. Subsequently, Resolution 36/2003[iv], modifies the compensatory interest rate to 3% and the punitive rate to 4%. The following year, by Resolution 314/2004[v]Resolution 36/2003 is repealed and a compensatory rate of 2% and a punitive rate of 3% are imposed. On August 24, 2004, Resolution 578/2004 is published.[vi], by which the compensatory rate is reduced to 1,5% and the punitive rate to 2,5%. In 2006, based on Resolution No. 492/2006[vii], the compensatory rate is increased to 2% and the punitive rate to 3%. In 2010, by Resolution 841/2010[viii], the compensatory rate is raised to 3% and the punitive rate to 4%. Then, in 2019, by Resolution No. 50/2019[ix] of the Ministry of Finance, decides to establish a compensatory rate in force in each calendar quarter, which will be the effective monthly equivalent to one point two (1,2) times the nominal annual rate of the electronic channel for fixed-term deposits in pesos at one hundred and eighty (180) days of the Banco de la Nación Argentina in force on the twentieth (20) of the month immediately preceding the beginning of the aforementioned quarter. And for the punitive rate, in force in each calendar quarter, it will be the effective monthly equivalent to one point five (1,5) times the nominal annual rate of the electronic channel for fixed-term deposits in pesos at one hundred and eighty (180) days of the Banco de la Nación Argentina in force on the twentieth (20) of the month immediately preceding the beginning of the aforementioned quarter.
From these regulatory provisions it can be observed that Resolution 314/2004 remained in force, only modifying the value of the rate, which varied as previously stated, and therefore, it is necessary to transfer it to the context in which such regulation was issued to understand the criteria that led to its issuance and its implication in terms of customs tax liquidations.
It should be noted that in 2004, although customs tax settlements were expressed in dollars, they were actually required in pesos at the exchange rate on the date of the taxable moment, as determined by Article 639 and 728 of the Customs Code for import and export, respectively. This did not create any possibility of considering a differentiation of criteria in terms of opportunity, merit and convenience. Obviously, because the rates set in accordance with Resolution 314/2004 were intended for debts in pesos.
Only in 2012, by AFIP General Resolution 3271/2012[X], it is decided to settle customs duties in US dollars, converting them into pesos for payment at the exchange rate of the day prior to their effective cancellation, but despite such a decision, a regulatory framework is not established regarding compensatory or punitive interest for this type of settlements in dollars. Only Resolution 314/2004 for debts in pesos is in force. The rate for this type of debts in dollars was recently established in 2019, with Resolution 598/2019.[xi].
In view of the above, it is unquestionable that the criteria that supported the imposition of the compensatory rate and the punitive rate during the time period from 2004 to 2019, with Resolution 314/2004 and then Resolution 50/2019 in force, was based on considerations of opportunity, merit and convenience applied to debts in pesos and not to any other currency. It is enough to observe the considerations in each resolving case to notice that the rise or fall of the interest rate, during this period, was not due to reasons related to the US currency. More recently, the need has been noted - expressly - to differentiate this criterion, with the issuance of Resolution 598/2019, a rule that makes this known, giving rise to a compensatory rate for debts in pesos and another for debts in dollars, doing the same, with respect to the punitive rate. Thus, it is clear that until 2019, there was no special regulatory framework that sets a compensatory/punitive interest rate for tax debts in dollars. Therefore, the application of a rate designed on weights with respect to and intended for the currency in pesos -for tax credits in dollars- during this cycle would be illegal.
In addition, Resolution 598/2019 repealed Resolution 314/2004, since it not only established new rates for debts in pesos but, for the first time, the authority introduced rates for debts in dollars. Thus, it is evident that article 8 of this resolution - "For the cancellation of obligations whose maturity occurred before the date of entry into force of this resolution, the regimes in force during each of the periods that they reach must be applied."-, refers to the rates for debts in pesos and not for tax credits in dollars, given that the interest rates for this type of debt have only recently been established with Res. 598/2019. Consequently, this legal device must be applied to all debts in US dollars because it conceives in its ruling the criterion based on the opportunity, merit and convenience according to this type of debt, which is not aligned with those previous resolutions that have had as their object evaluations for debts in pesos and not in dollars. Situation that, from the positive law, is corrected with Resolution 598/2019. To such an extent that, by modifying the rates again through Resolution 559/22[xii], the competent authority, only changes the rate in pesos and not the dollar rate, maintaining the terms of its previous one.
Conclusion
In this sense, what was proposed by Dr. Miguel Nathan Licht[xiii] In its vote, it finds a framework of logic that, beyond the possibility of moving forward, based on its position, in imposing a change in the interest rate and thus opening the discussion on the judge's powers for such action, we believe that applying the interest rate of Resolution 598/19 for previous debts in dollars should not be seen as a modification of the interest rate, but rather it is establishing the correct rate, taking into account the criteria that the competent authority has used to correct what it had been omitting and generating, based on such neglect, the erroneous application of an interest rate that was not appropriate for this type of debt.
Therefore, we consider that, in the case of applying an interest rate for debts in dollars, it must correspond to the one that was imposed with the criterion of opportunity, merit and convenience that the authority upheld when setting a differential rate in dollars, which has recently occurred with Resolution 598/19. Otherwise, a rule that is not relevant to this type of debt would be used again, assigning a rate that is far from the authority's own criteria, which in this case, has only served to impose rates in pesos. This, if accepted, would be absent from the intention of the competent authority when legislating the rate designated for dollars.
In short, since there is no interest rate for debts in dollars established prior to Resolution 598/19, if interest is applicable for this type of tax credit, that special rule should be prioritized over others that were based on liabilities in pesos. This does not mean modifying the rate, but rather merely determining the correct one in terms of positive law.
[I] Dr. Miguel Nathan Licht –vote- in ruling of 16.02.2023/39.933/XNUMX- Tax Court of the Nation -“BASF ARGENTINA SA s/ appeal”, file no. XNUMX-A-.
[ii] Dr. Claudia B. Sarquis, Dr. Héctor Hugo Juárez agrees -vote- in the ruling of 16.02.2023/39.933/XNUMX- Tax Court of the Nation - "BASF ARGENTINA SA s/ appeal", file no. XNUMX-A-.
[iii] Res. 110/02 (BO26.06.2002) – Article 1º — The rate of compensatory interest provided for in article 37 of Law No. 11.683, consolidated text in 1998 and its amendments, and by articles 794, 845 and 924 of the Customs Code — Law No. 22.415 and its amendments — is hereby established at FOUR PERCENT (4%) per month. Art. 2º — The rate of punitive interest provided for in article 52 of Law No. 11.683, consolidated text in 1998 and its amendments, and by article 797 of the Customs Code — Law No. 22.415 and its amendments — is hereby established at SIX PERCENT (6%) per month.
[iv] Res. 36/03 (B.=.23.01.2003) – Article 1° — The rate of compensatory interest provided for in article 37 of Law No. 11.683, consolidated text in 1998 and its amendments, and by articles 794, 845 and 924 of the Customs Code — Law No. 22.415 and its amendments — is hereby established at THREE PERCENT (3%) per month. Art. 2° — The rate of punitive interest provided for in article 152 of Law No. 11.683, consolidated text in 1998 and its amendments, and by article 797 of the Customs Code — Law No. 22.415 and its amendments — is hereby established at FOUR PERCENT (4%) per month.
[v] Res. 314/04 (BO 4.05.2004) Article 1º – The compensatory interest rate provided for in Article 37 of Law No. 11.683, consolidated text in 1998 and its amendments, and by Articles 794, 845 and 924 of the Customs Code Law No. 22.415 and its amendments — is hereby established at TWO PERCENT (2%) per month. Art. 2º The punitive interest rate provided for in Article 52 of Law No. 11.683, consolidated text in 1998 and its amendments, and by Article 797 of the Customs Code Law No. 22.415 and its amendments — is hereby established at THREE PERCENT (3%) per month.
[vi] Res. 578/04 – Article 1. In Article 1 of Resolution No. 314 dated May 3, 2004, where it says “TWO PERCENT (2%) monthly” it should say “ONE AND FIFTY HUNDREDTHS PERCENT (1,50%) monthly”. Art. 2. In Article 2 of Resolution No. 314/04, where it says “THREE PERCENT (3%) monthly” it should say “TWO AND FIFTY HUNDREDTHS PERCENT (2,50%) monthly”.
[vii] Res. 492/06 (BO30.06.2006) . Article 1º — In Article 1 of Resolution No. 314 dated May 3, 2004 of the MINISTRY OF ECONOMY AND PRODUCTION, where it says «ONE AND FIFTY HUNDREDTH PERCENT (1,50%) monthly» it should say «TWO PERCENT (2%) monthly». Art. 2º — In Article 2 of Resolution No. 314/04 of the aforementioned Ministry, where it says «TWO AND FIFTY HUNDREDTH PERCENT (2,50%) monthly» it should say «THREE PERCENT (3%) monthly».
[viii] Res. 841/10 (BO12.12.2010) – Article 1º — In Article 1 of Resolution No. 314 dated May 3, 2004 of the former MINISTRY OF ECONOMY AND PRODUCTION and its amendments, the expression “TWO PERCENT (2%) monthly” shall be replaced by “THREE PERCENT (3%) monthly”. Art. 2º — In Article 2 of Resolution No. 314 dated May 3, 2004 of the former MINISTRY OF ECONOMY AND PRODUCTION and its amendments, the expression “THREE PERCENT (3%) monthly” shall be replaced by “FOUR PERCENT (4%) monthly”.
[ix] Res. 50/19 (BO 8.02.2019) – Art.1.- Replace article 1 of resolution 314 of May 3, 2004 of the former Ministry of Economy and Production, with the following: Article 1.- It is established that the monthly compensatory interest rate provided for in article 37 of Law No. 11.683, text consolidated in 1998 and its amendments, and in articles 794, 845 and 924 of the Customs Code (Law No. 22.415 and its amendments), in force in each calendar quarter, will be the effective monthly rate equivalent to one point two (1,2) times the nominal annual electronic channel rate for fixed-term deposits in pesos at one hundred and eighty (180) days of the Banco de la Nación Argentina in force on the twentieth (20) day of the month immediately preceding the beginning of the aforementioned quarter. Art. 2.- Replace article 2 of resolution 314/2004 of the former Ministry of Economy and Production, with the following: Article 2.- It is established that the monthly penalty interest rate provided for in article 52 of Law No. 11.683, text consolidated in 1998 and its amendments, and in article 797 of the Customs Code (Law No. 22.415 and its amendments), in force in each calendar quarter, will be the effective monthly rate equivalent to one point five (1,5) times the nominal annual rate electronic channel for fixed-term deposits in pesos at one hundred and eighty (180) days of the Banco de la Nación Argentina in force on the twentieth (20) of the month immediately preceding the beginning of the aforementioned quarter.
[X] Res. 3271/12 (BO 10.02.2012) – Article 1 — The following are established for customs tax obligations —original or supplementary— expressed in US dollars that, in accordance with the provisions of article 20 of Law No. 23.905 and its amendment, are entered in legal currency: a) For their conversion into pesos, the selling exchange rate reported by the Banco de la Nación Argentina at the close of its operations, corresponding to the business day prior to the date of actual payment, shall be used. b) When interest is applicable, such interest shall be calculated on the capital owed —in pesos— up to the date of payment, in accordance with the provisions of article 794 and related articles of the Customs Code. c) Supplementary customs tax obligations shall be settled and notified in US dollars. The notice or notification instrument shall state the provisions of paragraphs a) and b) above and that, where applicable, the provisions of General Resolution No. 2890 and its amendment shall apply.
[xi] Res. 598/19 (BO18.07.2019) – ARTICLE 1°.- Establish that the monthly compensatory interest rate provided for in article 37 of Law No. 11.683, text consolidated in 1998, and in articles 794, 845 and 924 of the Customs Code, in force in each calendar quarter, will be the effective monthly rate equivalent to one point two (1,2) times the nominal annual electronic channel rate for fixed-term deposits in pesos at one hundred and eighty (180) days of the Banco de la Nación Argentina in force on the twentieth (20) day of the month immediately preceding the beginning of the aforementioned quarter. ARTICLE 2°.- Establish that the monthly penalty interest rate provided for in article 52 of Law No. 11.683, consolidated text in 1998, and in article 797 of the Customs Code, in force in each calendar quarter, will be the effective monthly rate equivalent to one point five (1,5) times the nominal annual electronic channel rate for fixed-term deposits in pesos at one hundred and eighty (180) days of the Banco de la Nación Argentina in force on the twentieth (20) day of the month immediately preceding the beginning of the aforementioned quarter. ARTICLE 3°.- Establish that the interest rates applicable for the cases contemplated in articles 1º and 2º will be zero point eighty-three percent (0,83%) and one percent (1%) monthly, respectively, when the obligations in question are expressed in US dollars or must be paid according to the amount of categories or other similar concepts in force on the date of their effective payment.
[xii] Res. 559/22 (BO25.08.2022) – ARTICLE 1.- The compensatory interest rate provided for in article 37 of Law No. 11.683, consolidated text in 1998 and its amendments, and in articles 794, 845 and 924 of Law No. 22.415 (Customs Code) and its amendments, is hereby established at five point ninety-one percent (5,91%) per month. ARTICLE 2°.- The penalty interest rate provided for in article 52 of Law No. 11.683, consolidated text in 1998 and its amendments, and in article 797 of Law No. 22.415 (Customs Code) and its amendments, is hereby established at seven point thirty-seven percent (7,37%) per month. ARTICLE 3°.- It is hereby established that the interest rates applicable to the cases contemplated in articles 1° and 2° of this resolution shall be zero point eighty-three percent (0,83%) and one percent (1%) per month, respectively, when the obligations in question are expressed in United States dollars or must be paid in accordance with the amount of categories or other similar concepts in force on the date of their actual payment.
[xiii] Dr. Miguel Nathan Licht –vote- in ruling of 16.02.2023/39.933/XNUMX- Tax Court of the Nation -“BASF ARGENTINA SA s/ appeal”, file no. XNUMX-A-.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
