In Buenos Aires, on the 11th day of the month of June 1998, the Members of the Tax Court of the Nation, Drs. Jorge C. Sarli, Elena D. Fernandez de la Puente, Rodolfo H. Cambra, Susana Lia Silbert, Silvia A. Crescia, Ricardo X. Basaldua, Gustavo A. Krause Murguiondo, Catalina Garcia Vizcaino, Carlos A. Porta, Sergio P. Brodsky, Jose E. Bosco, Ernesto C. Celdeiro, Ignacio J. Buitrago, Maria Isabel Sirito, Graciela L. T. de Wurcel, Esteban Juan Urresti, Jose D. Litvak, chaired by Dr. Agustin Torres, on the occasion of the call arranged in the proceedings entitled: TELEFONICA DE ARGENTINA SA V/ DIRECTORATE GENERAL OF CUSTOMS s/appeal File No. 9105-A, and recess agreed on June 10 of this year. The act was opened,
Dr. Sarli said:
I.- That the first point to consider is to determine whether the doctrine of the Plenary Session of Azar, Salvador R. and others of November 28, 1984 is applicable to the case of the present Plenary Session, and therefore it would be an obstacle to the judgment of the validity of Resolution (SH) 360/96, in which case it would be appropriate -by the present or in another plenary session- to review and eventually modify said doctrine.
At the aforementioned Plenary Session, Azar established the following legal doctrine: It is not appropriate for this Court to rule on the illegality of resolutions that generally establish compensatory interest rates on updated or unupdated amounts, as a consequence of the provisions of article 42 of Law 11.683 and article 794 of Law 22.415, unless in the specific case the jurisprudence of the Supreme Court of Justice of the Nation applies in accordance with the provisions of article 167 of Law 11.683 and article 1164 of Law 22.415.
The undersigned understands that in this case and for the reasons for which this case was convened, it is not necessary to review the doctrine of that Plenary Session. This is so because what is at stake here is not to rule on the legality or illegality (or on the power of the Tax Court to rule on the matter) of the rate set by virtue of art. 794 of the CA (equivalent to art. 42 of Law 11.683) but on the legality or illegality of the rate set by virtue of art. 812 of the CA.
This is without prejudice to pointing out that, in our opinion, this Court does have the power to issue a ruling in relation to the aforementioned art. 794 and, therefore, could review the doctrine of the Plenary Azar in this regard and for the reasons that will be developed in point III of this vote.
Furthermore, it should also be noted that - as will be seen later - in the matter that brings us to this plenary session there is a substantial difference between the analysis of the issue depending on whether it concerns the rules of Law 11.683 or those of the CA; and this, insofar as art. 161 of Law 11.683 does not establish any guideline for the setting of the interest provided for therein, nor does it make any reference to another provision of the same law, nor does it authorize any body to dictate a delegated rule for this purpose (for which reason the application of the rates set by virtue of art. 42 of the same law would be only a doctrinal solution) while art. 812 of the CA (which would be the equivalent of art. 161 of Law 11.683) refers to art. 794 of the same code insofar as it expressly refers to the rate set by the Treasury Department in accordance with said art. 794.
II. That, consequently, it is appropriate to limit this plenary session to the scope of application of the aforementioned rules of the Customs Code, that is, to the Vocals with customs jurisdiction, which in this sense I VOTE.
III. That having thus defined the issue, the respondent maintains, firstly, that art. 1165 of the CA does not prevent this Court from judging the legality or illegality of the rate set by the Treasury Department pursuant to art. 812 of the aforementioned code.
Article 1165 of the Customs Code provides: The Tax Court may declare in a specific case that the ministerial or administrative interpretation applied does not conform to the interpreted law. In both cases, the ruling will be communicated to the State Secretariat of Finance.
Article 812 of the Customs Code states: In the cases provided for in art. 811, the applicable interest rate will be the one set by the State Secretariat of Finance in accordance with the provisions of art. 794.
The impediment referred to above could be understood -with the disagreement that I have already expressed- in the sense that art. 1165 would limit and delimit the judgment of the Tax Court only to the case of an interpretative resolution, and that therefore it would not extend to resolutions that were the exercise of a delegated power (and this last insofar as Res. 360/96 in question constitutes the exercise of a power of such nature).
But this obstacle does not occur in this case (nor in the case of art. 1164 of the CA) because, in short, the constitutional validity of the law or its authorized regulation is not judged but rather only the adequacy of a ministerial resolution to the guidelines established by the law is examined so that its integration is appropriate.
Indeed, if in order to safeguard the purposes of the law and in light of its status as a specialized Court, it can make its opinion prevail over that of the respective Ministry in debatable cases susceptible to different interpretations, it can and should do so with greater reason when it is no longer merely a question of interpretation but of a violation of the law, measurable through objective elements of judgment.
In this way, the Court fully exercises its function as a specialized body independent of the active Administration, created for the specific purpose of issuing the final decision within the sphere of the Administrative Power in each specific case submitted to its jurisdiction.
If this Court could not declare the illegality of a ministerial resolution, pointing out the excess in which it had incurred, it should apply it and in such case condemn the payment of interest that it considers excessive and in violation of the law that establishes them.
Therefore, it would be pointless for this Court to resolve a case against the law and its own opinion, deferring to the Judiciary the task of rectifying a damage that could well be avoided within the sphere of the Administrative Power itself.
On this issue, the undersigned agrees with some of the concepts expressed by Dr. Sirito in the Azar Plenary.
It is therefore concluded that it is appropriate for this Court to declare the illegality of the resolutions of the Secretary of State for Finance when it is determined that they exceed the limits set by Article 812 of the Customs Code (as would also be appropriate if the same question were to arise with respect to the limits of Article 794 of the same code).
In any case, it should be noted that within the restrictive sense in which art. 1165 of the CA could be understood, that is, limited only to interpretative resolutions, this Court would also have the power to rule on the legality or illegality of Resolution SH 360/96, insofar as said resolution, when setting the interest rate for repetitions and given the express text of art. 812 of the CA, is interpreting one of the two meanings that grammatically and/or syntactically could be given to the expression: in accordance with the provisions of art. 794; that is, it is interpreting that such conformity is only referred to the body that sets the rate (and not to the quantum of the rate, of equal magnitude to that of art. 794).
IV.- Finally, the undersigned believes that the interpretation that should be given to the aforementioned reference in art. 812 of the CA is in the sense that the conformity in question extends to the amount of the rate.
Thus, in compliance with the provisions contained in the last cited article, the Treasury Department issued successive resolutions in which it set the interest rate referred to in art. 794 and this was the rate applied to the refunds of amounts unduly collected by the Treasury, a temperament that was maintained until the issuance of Resolution No. 360/96, in which a differential rate was established for art. 811 of the CA -art. 3-, repealing the previous resolution No. 21/91 and any other rule that was contrary to the new provision. In my opinion, the aforementioned Treasury Department, by establishing a difference not authorized by the Customs Code, has deviated from the legal provisions.
The express reference contained in art. 812 cannot be understood as anything other than in totum to the norm to which it refers, since that norm contains no distinction. This interpretation, moreover, coincides, as has been pointed out, with the administrative criterion that has been applied uniformly since the Customs Code came into force.
It is interesting to mention the opinion expressed on this matter by some of the drafters of the Customs Code, who, when commenting on article 812, point out that by virtue of the reference to article 794 contained in the text, the interest rate accrued on the credits of the administered parties for amounts that must be returned to them for having been unduly paid as taxes is the same as that accrued on the credits of the Treasury for amounts owed by the administered parties as taxes (CUSTOMS CODE – COMMENTS – BACKGROUND – CONCORDANCES by Drs. Alsina, Basaldúa and Cotter Moine, in volume VI, page 235).
For the reasons stated above, I VOTE in favor of establishing the following legal doctrine: it is appropriate to declare the illegality of art. 3 of Resolution SH 360/96 (Official Gazette of 4/6/96) for not complying with the text of the law -art. 812 CA- and, consequently, to decide that the interest rate to be applied for calculating the interest accrued from the date of the administrative claim until the actual payment of the amount owed is the one set for art. 794 of the Customs Code.
Dr. Fernandez de la Puente said:
I.- That in relation to the first point to be discussed, consisting of the application to the case of the plenary doctrine established in the case of Azar Salvador R. et al. of November 28, 1984, it adheres to the conclusion reached in points I and II of the vote of Dr. Sarli, except as regards what is indicated in the fourth paragraph of the first recital of the same.
II.- That, as held by Chamber G in repeated rulings, art. 812 of the CA provides for these cases that… the rate will be the one set by the State Secretariat of Finance in accordance with the provisions of article 794.
In compliance with the provisions of the aforementioned art. 812, the said State Secretariat - or the agencies that replaced its functions - issued successive resolutions in which the interest rate referred to in art. 794 was set (i.e. the interest rate for tax debts in favor of Customs) and that was the rate that was also applied to the refunds of taxes unduly collected by the treasury, a criterion that was maintained until the issuance of Resolution SH 360/96 in question, by which (art. 3) a differential rate was established, specifically for art. 811 of the CA (6% annually), while at the same time another, higher rate was established (art. 1) for credits in favor of Customs, repealing the previous Resol. SFP 3/21 and any other rule that was contrary to the new provision.
The express reference made by art. 812 (to art. 794) must necessarily be understood integrally, that is to say, it cannot be considered only in reference to the maximum rate (maximum referred to in the last part of art. 794), but, specifically and especially, in reference to the rate itself (conf.: Customs Code – Comments, …, Ed. Abeledo-Perrot, Drs. Alsina, Basaldúa, Cotter Moine, Commentary on art. 812, Vol. VI, p. 235), not only and precisely because of the logical equality for this purpose (although the equality aspect, in particular, as seen, is outside the consideration of this Court), but even literally, and because it is reasonable that if the legislator had had the intention of making this rate independent of the rate of tax credits (art. 794), it would have been enough to simply express (in art. 812)… the rate set by the Treasury Department, without any reference to art. 794.
Therefore, the Treasury Department, by establishing -for the repetitions- a difference not authorized by the Customs Code, has exceeded its delegated powers and, consequently, it is appropriate to declare the illegitimacy of art. 3 of the SH Resolution No. 360/96 -for not conforming to the text of art. 812 of the CA SO I VOTE.
Dr. Cambra said:
That agrees with the vote of Dr. Fernández de la Puente.
Dr. Silbert said:
From the reading of the plenary session, Azar emerges that when the legal doctrine was issued, art. 812 of the CA was not considered, but nevertheless the doctrine established there, if it is inferred from the express reference made to arts. 42 of law 11.683 and 794 of law 22.415, would in principle also be applicable to the case contemplated by the aforementioned art. 812 of the CA.
It is precisely this possible double interpretation of the doctrine set forth there, which gave rise to the divergent pronouncements that determined the need for the call to the plenary session that concerns us here.
The above leads me to support the need for a new plenary session that expressly considers the issue that arises as a result of the rulings on Aluar Aluminios Argentinos SA and Neumáticos Goodyear SA.
Since art. 812 of the CA is substantially different from art. 161 of Law 11.683, since the latter does not establish any guidelines for setting the interest, I understand that the plenary that must resolve the issue in question must be composed exclusively of members with customs jurisdiction.
For the reasons stated above, the Plenary Azar is not applicable to art. 812 of the CA. SO I VOTE.
Drs Crescia and Basaldúa said:
Who adhere to Dr. Sarli's vote.
Dr. Gustavo A. Krause Murguiondo said:
That, in the opinion of the undersigned, there is no doubt that the resolutions established by the State Secretariat of Finance or whoever takes its place, exercising the powers provided for in art. 812 of the Customs Code, regarding interest rates for repetitions of customs taxes, are applicable to the doctrine of the Full Court established in the Plenary Azar Salvador R. and others (P 919), insofar as it determined that it is inappropriate for the Court to rule on the illegality of the same, unless in the specific case the jurisprudence established in that aspect by the National Supreme Court of Justice is applied.
That art. 812 of the Customs Code is not a blank rule that refers to the interest rates set for the cases of art. 794 of the same legal body. On the contrary, it is a rule that delegates to the Treasury Department the power to set them, in the same way that this power was delegated in art. 794, and with the maximum limits set for the latter case. In no case is it stated that the rates set by virtue of art. 812 must be equal to those determined in relation to art. 794. This is so evident that if it had been so desired, a mention that the rates for repetitions would be those of art. 794 would have been enough, without it being necessary for this purpose to grant a new power in art. 812 to the Treasury Department.
That if the expression of art. 812 the applicable interest rate will be the one set by the Secretary of State for Finance, in accordance with the provisions of art. 794, is understood, as the undersigned does, as a new power with the limits set in art. 794, there would be no doubt regarding what has already been stated above.
II.- That if on the other hand and in another way, it were understood that the powers are already set out in art. 794, and that there is no new authority in art. 812, there would be no difficulty in that, by means of the powers granted by art. 794, the Ministry of Finance or whoever takes its place, sets different rates for the assumptions of art. 794, with respect to the assumptions of art. 812.- There is no rule in the Customs Code that establishes that the rates set by virtue of art. 794 should not be differential, according to criteria that may be considered appropriate.
That, moreover, the reasonableness of the interpretation of the rules in question that is proposed, finds its support also in the jurisprudence of the Supreme Court of Justice (in re Arcana, Orazio s/demanda de respuesta, sentence of March 18, 1986 – Fallos Tomo 308, p. 283) insofar as referring to the rules of Law 11.683, it admitted the differential treatment of the interests fixed for the delay in the payment of taxes, with respect to those applicable to the repetition of taxes.
That for the reasons stated above, in any interpretation adopted, the doctrine of the Plenary Azar is applicable, since this plenary does not distinguish for the cases analyzed whether it deals with the establishment of differential rates or not.
Dr. Catalina García Vizcaíno said:
I) That art. 161 of Law 11.683 - amended in 1978 - does not contain any reference to the magnitude of the interest rate for repetitions nor does it specifically confer powers to any body to determine it, which is why the Chambers with jurisdiction in tax matters of this Court established legal doctrine in this regard in the plenary ruling in the case of Dálmine Siderca SA and C., dated 7/12/93, which reviewed the previous plenary doctrine also established in Electricidad de Misiones SA dated 3/7/86.
That, however, art. 812 of the CA stipulates that, both in cases of spontaneous payments and on demand, the applicable interest rate will be the one set by the State Secretariat of Finance, in accordance with the provisions of art. 794.
That, however, General Resolution ME and O. and SP 366/98 (BO 2/4/98, which repealed -among others- Resolution SH 360/96), as of 3/4/98 unified the compensatory and punitive interest rates, as well as those relating to interest for repetitions in tax and customs matters. Arts. 3 and 4 of this General Resolution 366/98 establish at fifty hundredths percent (0,50%) per month the interest rate of arts. 831 and 838 of the CA and those provided for by art. 161 of law 11.683, to in 1978 and its amendments.
This leads me to consider that the Court as a whole should rule on the issue to be voted on today, without limiting it only to the Members with customs jurisdiction.
That, moreover, I understand that it reinforces what was said that the Court in Plenary established the plenary doctrine in re Azar (P-919) of 28/11/84, in the sense that: It is not appropriate for this Court to rule on the illegality of the resolutions that establish in a general manner the compensatory interest rates on updated or unupdated amounts, as a consequence of the provisions of art. 42 of law 11.683 and art. 794 of law 22.415, unless in the specific case the jurisprudence of the Supreme Court of Justice of the Nation applies, in accordance with the provisions of art. 167 of law 11.683 and art. 1164 of law 22.415.
That according to the terms of the call of 28/4/98 it is not appropriate to review the plenary doctrine established in the Joint Agreement Azar of 28/11/84 (already fortiori it cannot be reviewed only by the Members with customs jurisdiction), but the issue object of this call is limited to establishing whether this doctrine is applicable to art. 812 of the CA
That the respectable criterion according to which only the Members with competence in customs matters should issue their opinions would mean - in my opinion - that a part of the Court would review a doctrine established by all the members who comprised it at that time, with a mandatory character (conf. arts. 137 of the cited law 11.683 and 1140 of the CA), who issued their opinion on art. 794 of the CA to which art. 812 of that Code refers.
II) That as regards the hermeneutics of art. 812 of the CA, I adhere to the vote of Dr. Gustavo A. Krause Murguiondo. I VOTE SO.
Dr. Torres said:
I. That although it was already resolved by the preliminary meeting reported in the minutes on fs. 56 that this Plenary Agreement is joint in the terms of article 137, 5th paragraph, of law 11.683, in light of what was expressed by Dr. Sarli, I believe it is appropriate to emphasize the scope of this Plenary.
Indeed, what is being interpreted here is the jurisdictional restriction imposed on this Court by arts. 167 of law 11.683 and 1164 of the Customs Code, that is, on legal provisions and of common application to the tax and customs chambers, which is precisely the hypothesis necessary for the Plenary to be integrated with all the Chambers of the Court. This scope was the one assigned when the doctrine was established in Azar SR and Others (APC-4). And the particularity that on that occasion the Judges with customs jurisdiction examined the scope of the jurisdictional restriction regarding the resolutions issued by virtue of art. 42 of law 11.683, is symmetrical to the opinion that the judges with tax jurisdiction issued regarding those of art. 794 of the Customs Law. The circumstance that arts. 167 of the Tax Procedure Law and 1164 of the Customs Code must always be interpreted in relation to a tax or customs text, but this does not change the underlying nature of the interpretation that is being applied: it is always the scope of that restriction in relation to the regulations that comes into play. For this reason, I believe that the issue brought to this Agreement is a common matter for all the chambers of this Tax Court.
II. That this Joint Plenary Agreement is called upon to rule in order to establish whether the legal doctrine established in the previous one of the same characteristics held on November 28, 1984 in re AZAR, Salvador R. and others is applicable to art. 812 of the Customs Code.
That at that plenary session it was established that it was not appropriate for this jurisdictional body to rule on the illegality of the resolutions that establish, in general terms, the compensatory interest rates on updated or unupdated amounts, as a consequence of the provisions of art. 42 of law 11.683 and art. 794 of law 22.415, unless, of course, in the specific case the jurisprudence of the Supreme Court of Justice of the Nation was applied by virtue of the provisions of art. 167 of law 11.683 and 1164 of the Customs Code.
In my opinion, the rule of art. 812 of the Customs Code, insofar as it mandates that in the cases provided for in art. 811 - that is, the refund of taxes paid spontaneously or on request - the applicable interest rate will be the one set by the Secretary of State for Finance in accordance with the provisions of art. 794 of the same Code, although it contains a reference to the interest rate of the provision to which it refers, which is not inconsistent with the thesis of Chamber G, it is evident that it consecrates a delegation of normative power to the delegated entity, with the consequence that the provision issued pursuant to it retains the legal rank of the text in which it confers it and, therefore, a declaration of illegality in this regard finds a barrier in arts. 167 and 1.164 of Laws 11.683 and the Customs Code, as long as there is no jurisprudence from the highest Court in a sense unfavorable to its validity, although the doctrine of the Court in re Arcana Orazio of 18/3/86 (rulings: 308: 283) is consistent with the solution that is accepted in the acts of general scope whose validity has been discussed in the precedents that originated this Plenary Agreement and that are mentioned in the elevatoria that appears on page 55.
Therefore, I vote in the sense that the doctrine established in the Joint Plenary Agreement AZAR SALVADOR R. and OTHERS of 28/11/84 is applicable to art. 812 of the Customs Code.
Drs Porta and Celdeiro said:
Who adhere to the vote of Dr. Torres.
Dr. Sirito said:
I agree with the vote of Dr. Krause Murguiondo, stating once again that I do not share the legal doctrine established in the joint plenary (P. 919) originated by the case Ramón Salvador Azar SRL and others s/ appeal,
File No. 3778-I, held on November 28, 1984, for the reasons expressed when voting on the aforementioned agreement.
In relation to the case, I held then: … II- That as a starting point it is appropriate to establish that there is no doubt that the resolutions of the former Secretary of State for Finance issued as a consequence of the provisions of articles 42 of law 11.683 (to1973 and amendments) and 794 of the Customs Code, configure what comparative doctrine has called delegated regulation designation that - like so many others - has been received by Argentine constitutionalists and administrative experts.
It should be noted, however, that the majority of specialized authors have considered it more appropriate to call these administrative acts of general scope, authorized or enabled regulations or norms since, strictly speaking, there is no delegation of the legislative function to the organs of the Administrative Power, nor could it be admitted.
As correctly pointed out in the ruling issued in the case Fisco Nacional v. Cominco SA dated 29-9-81 (Chamber IV of the National Court of Appeals in Federal Administrative Litigation), the authorization in the case at hand has been established taking into account the permanent variability of interest rates, so that in a quick and flexible way it is possible - through this authorization - to adapt the regulatory provisions to the financial reality without the delays that the legislative reform mechanism would entail.
That the limit of such delegation, enablement or authorization is given by the law itself and this happens both in the case of article 42 of law 11.683 and in that of 794 of the Customs Code, since both establish a limit for the exercise by the Treasury Department of the power conferred.
In this sense, it is illustrative to transcribe the opinion of Miguel Marienhoff expressed in the Treatise on Administrative Law - 1965 edition - volume II, page 260: Delegated regulations must be limited to developing the basic principles contained in the law that makes the delegation. Such regulations have a double limit: one immediate, which is the reference law, another mediate, which is the Constitution, whose principles, in relation to the delegated matter and the extent of the delegation, must be respected by the delegator. So that the
The Constitution is the mediate limit of the delegated regulation. The immediate limit of the latter is the aforementioned law.
From the above it can be concluded that the existence of legal provisions that enable administrative bodies to regulate in a general manner - within a pre-established framework - certain aspects related to matters reserved for the Legislative Power is perfectly valid.
That, consequently -in this case- the constitutional validity of the authorizing norms contained in the aforementioned articles 42 and 794 of laws 11.683 and 22.415 is not under discussion.
It is therefore appropriate to examine whether this Court has the authority to judge whether administrative acts of a general nature that take the form of resolutions issued by the Ministry of Finance comply or not with the limits set by law.
For the purposes of carrying out this analysis, it is not apparent that the limitation imposed on this Court due to its administrative jurisdictional nature by article 167 of law 11.683 in the current consolidated text and its correlative 1164 of the Customs Code is applicable.
In this sense, the verification of the excess by the resolutions of the Ministry of Finance, of the already indicated limit established by law, does not entail opening a judgment on its constitutional validity but only establishing its lack of congruence with the authorizing legislative norm. This means that the examination is focused on a norm of lower hierarchy than the law, in the case of a resolution that does not lose its character as such despite its content, which is related in an indirect way to the Constitution, for which reason the verification of the excess - if it exists - would lead to the declaration of its illegality.
That reiterating the concept, it is understood that there is an attack on the legal order that is based on constitutional norms, but the location of the aggressive provision authorizes its disqualification without violating the limits established by articles 167 and 1164 cited, since this disqualification is based on the logical principle of consistency of the source of validity that in the sub-examination is given by articles 42 and 794 of laws 11.683 and 22.415 respectively.
It should not be overlooked that any injury to the legal order, even at the lowest normative level, attacks the Constitution, but the constitutional grievance must be specific and direct to be covered by the exclusive identity of the jurisdiction of this Court.
This is also the understanding of the appellants, since both in the Fabril Linera and Silvestri cases, as well as in the case that gave rise to this plenary agreement, they raised the illegality of the resolutions of the then Secretary of State for Finance, the application of which gave rise to the disputed interest settlements.
In summary, the constitutional validity of the law or its authorized regulation is not judged, but rather only the adequacy of a ministerial resolution to the guidelines established by the law is examined so that its integration is appropriate.
III. That the existence of article 166 of law 11.683 (to1978 and amendments) and its correlative 1165 of the Customs Code does not hinder the stated criterion insofar as it has been understood that by granting an express jurisdiction it is denying any other jurisdiction that could be implicit.
That, in effect, this rule contains an attribution of competence by establishing that, The Tax Court may declare in the specific case that the ministerial or administrative interpretation applied does not conform to the interpreted law.
That such interpretation or attribution may be considered unnecessary if one takes into account that this body is a court of full jurisdiction with broad powers to resolve the cases submitted to it within the framework of the general jurisdiction assigned to it.
In any case, even if it is considered essential to include Articles 168 and its corresponding 1165 cited because otherwise this Court will not have the power to declare that a ministerial interpretation does not comply with the interpreted law, the lack of express mention of the power to declare the illegality of a rule does not prevent it from doing so by applying the principle qui potest majus, potest et minus (whoever can do more, can do less).
That, indeed, if in order to safeguard the purposes of the law and in light of its status as a specialized court, it can make its opinion prevail
over that of the respective Ministry in debatable cases susceptible to different interpretations, with greater reason it can and should do so when it is no longer a question of interpretation but of a violation of the law, measurable through objective elements of judgment.
In this way, the Court fully exercises its function as a specialized body independent of the active administration, created for the specific purpose of issuing the final decision within the sphere of the Administrative Power in each specific case submitted to its jurisdiction.
That final decision is also required by law, which in principle should be definitive and that only by exception can it be questioned by the Treasury by way of appeal, complying with the requirements of article 175 of law 11.683.
That if this Court cannot declare the illegality of a ministerial resolution, pointing out the excess incurred, it must apply it and in such case condemn the payment of interest that it considers excessive and in violation of the law that establishes them.
That this decision can only be appealed by the taxpayer or responsible party in the devolutionary effect as it results from art. 176 of law 11.683 (to1978 and its amendments) and therefore its compliance is unavoidable.
It is possible that in some cases, paying what is undue can lead a company or individual to extreme situations that they cannot overcome.
That the review by the Chamber of the sentence of this Court implies in principle a control of legality by the Judicial Branch and only by exception entails a review of the facts as established in article 86, section 2, of law 11.683.
That, therefore, it makes no sense for this Court to resolve a case against the law and its own opinion, deferring to the Judicial Branch the task of rectifying a damage that could well be avoided within the Administrative Branch itself.
That this does not affect but rather guarantees the separation of powers as well as respect for the law and the principle of justice, taking into account also that it is not always possible to rectify errors committed in such a way that their effects are completely erased.
IV. That for the reasons set forth above, I vote in the sense that it is appropriate for this Court to declare the illegality of the resolutions issued by the State Secretariat of Finance when it is determined that they exceed the limits set by articles 42 of law 11.683 (to1978 and its amendments) and 794 of the Customs Code.
II- I also consider it necessary to clarify that the decision of the Supreme Court of Justice of the Nation in re ARCANA, Orazio s/demanda de repetition by judgment of March 18, 1986 (Fallos, volume 308, page 283), insofar as, referring to the provisions of Law No. 11.683, it established the differential treatment of the interest fixed in case of late payment of taxes, with respect to those applicable to tax repetitions, was received by the tax jurisdiction of this Tax Court in the plenary agreement originated by the case Electricidad de Misiones SA, File No. 7061-I, held on July 3, 1986, which annulled the legal doctrine established in the plenary session of the tax jurisdiction held on June 1, 1983 in relation to the case Rader Radiodifusora de Rosario SA File No. No. 3510-I, doctrine – the latter – which I also did not share due to the grounds set out in my vote to which I refer.
III- In summary, with the reservations set out above, I vote - as I mentioned earlier - in the same direction as Dr. Krause Murguiondo.
Drs Wurcel, Litvak and Urresti said:
I.- That this call for a Joint Plenary Agreement has as its exclusive purpose to rule on the appropriateness of the application of the doctrine previously held on November 28, 1984, in re AZAR, Salvador R. et al. to art. 812 of the Customs Code.
II.- That in said plenary ruling the following legal doctrine was upheld: It is not appropriate for this Court to rule on the illegality of resolutions that set, in a general manner, compensatory interest rates on updated or unupdated amounts, as a consequence of the provisions of article 42 of law 11683 and article 794 of law 22415, unless in the specific case the jurisprudence of the Supreme Court of Justice of the Nation is applied in accordance with the provisions of art. 167 of law 11.683 and art. 1164 of law 22.415.
III.- That said doctrine constituted at the time an interpretation of the scope of the powers of this Court to judge administrative acts of a general nature issued, in this case, by the National Treasury Department according to the provisions set forth in the aforementioned articles 167 of Law 11.683 and 1164 of Law 22.415.
IV.- That, by virtue of the characteristics of the rule being judged in the case - Resolution (SH) 360/96, the application of the aforementioned legal doctrine is unavoidable, without prejudice to the correctness or incorrectness that may be attributed to it and which, if applicable, should be the subject of a new call for a plenary agreement for the purposes of its reexamination.
V.- As long as the arguments and grounds of the votes that supported it are considered in a special manner, there can be no doubt about the general scope of the criteria adopted there, with regard to the fact that this Court was prohibited from ruling on the illegality of the aforementioned acts, in accordance with art. 167 of law 11683 and 1164 of the Customs Code.
VI.- That without prejudice to the foregoing and although a literal interpretation of the Plenary could grant it a restricted scope to the assumptions of regulatory norms of articles 42 of Law 11.683 and 794 of Law 22.415, a criterion that -as it is maintained- is not shared, said doctrine is equally of obligatory application to the case because, if article 812 of the Customs Code refers and conditions the Resolution of the Secretary of State of Finance, -with whatever scope-, to article 794 of the same ordinance, the cited article 794 should have been necessarily and to some extent applied, either in totum (as it emerges from the vote of Drs. Sarli and Fernández de la Puente) or only with respect to the modality and the power granted (according to the vote of Dr. Krause Murguiondo).
VII.- That, for the reasons stated above, it is not appropriate to open the debate regarding other issues that make up the illegitimacy of the rule in question, since the impediment established by the doctrine of the Azar plenary agreement imposes a barrier that can only be overcome by its reformulation, which obviously, like this Plenary, must be the subject of treatment by the Tax Court as a whole.
Dr. Buitrago said:
That adheres to the preceding vote.
Drs. Bosco and Brodsky said:
Who adhere to the vote of Dr. Krause Murguiondo.
That in accordance with the foregoing vote, the Honorable Members by majority AGREED: that the legal doctrine established in the Plenary Agreement Azar, Salvador R. dated November 28, 1984 is applicable to art. 812 of the Customs Code. (Plenary Legal Doctrine Azar: It is not appropriate for this court to rule on the illegality of the resolutions that legally establish compensatory interest rates on updated or non-updated amounts, as a consequence of the provisions of article 42 of law 11.683 and article 794 of law 22.415, unless in the specific case the jurisprudence of the Supreme Court of Justice of the Nation applies, in accordance with the provisions of article 167 of law 11.683 and article 1164 of law 22.415). With which the act ended at five thirty in the afternoon. Please check in and return the cars to the Room of Origin.
