The Supreme Court of Justice of the Nation declared the withholdings on exports unconstitutional. It did so in the case “Camaronera Patagónica S.A. c/ Ministry of Economy and others without protection”, (15.4.2014). The decision was adopted by a majority vote of its magistrates. These are the withholdings established by Resolutions 11/2002 and 150/2002, both of the Ministry of Economy, which is why the resolved case includes exports that took place between March and August 2002.

The ruling empowers the company that discussed the constitutionality of the customs withholdings to obtain the reimbursement of the sums withheld in that period.

Although this precedent does not imply a benefit that is projected directly to other companies that have not discussed the legality of the aforementioned regulations, in any case it will benefit those who have taken legal action at the time and raises some questions about those who paid taxes for via retention at later dates. The Supreme Court reaffirmed, once again and analogously to its criteria sustained throughout its history, an essential fact in the Constitutional State of Law, specifically in relation to the tax obligation: the full validity of the division of powers. He ruled that the Executive Power cannot advance on a matter that the Constitution reserved exclusively for the National Congress, such as the power to establish taxes.

As Madison taught, in El Federalista, “only the Congress of the Nation can put its hands in the pockets of the taxpayer.”

Consequently, due to the fact that only the National Congress has the competence to establish taxes and customs withholdings have that nature -according to the aforementioned ruling-, the declaration of unconstitutionality of Resolutions 11/2002 and 150/2002 was imposed with express effect. to the period between March and August 2002 because later a law expressly ratified the delegated legislation (the laws in question were 25,418, 25,645, 25,918, 26,135 and 26,519).

In the precedent that we are commenting on, the Supreme Court of Justice of the Nation maintains that “constitutional principles and precepts prohibit any Power other than the Legislature from establishing taxes, contributions and rates… no tax burden can be enforced without the pre-existence of a legal provision framed within the constitutional precepts and precautions, that is, validly created by the only power of the State invested with such attributions”. More specifically, it stated: “This consolidated doctrine was upheld, without cracks even in cases where the establishment of a tax, or its modification or expansion, was questioned through a decree of necessity and urgency when it was stated that the tax matter supposes an insurmountable constitutional limitation for the Executive Power, a fence that does not give in even through decrees of the aforementioned nature… position that the 1994 constituent maintained, without hesitation, when drafting the current inc. 3 of art. 99 of our Fundamental Law… The reason for said limitation is based on the fact that the attribution of creating taxes is the most essential to the nature of the representative and republican regime of government”.

An additional practical problem that can be seen is the fact that there are withholdings that would not be covered by the delegation of powers that the Congress of the Nation made in favor of the Executive Power in successive laws. The aforementioned Resolution 125 is framed in this context.

Even though it is a precedent of great practical significance, some questions arise:

a) What is the legal situation of the withholdings carried out as of August 24, 2010, can they also be considered illegitimate withholdings? That is the expiration date of the last ratification of the legislation delegated through Law 26,519. In other words, the question lies in knowing if “repetition actions” can be filed to obtain what was paid from August 25, 2010 to date.

b) Is the ruling effective with respect to all taxpayers? Without prejudice to the fact that it is a fishing company that acted, the most affected are the entities of the field. For this reason, they will surely evaluate the judicial questioning of all the resolutions and decrees that established rates for soybeans, sunflowers, corn and wheat since 2002.

c) What happens with the eventual review of the increases in the rate of withholdings that went from 23.5 to 35%, and that would be since 2006 without ratification by Congress?

d) There would be no legal action possible for the withholdings made between August 2002 and the same month in 2010, since the National Executive Power had the delegation of powers from Congress, which would grant legality to the tax.

e) Biodiesel producers and feed manufacturers could act for the periods 2002 to 2010? This is due to the fact that, with respect to those, the Ministry of Economy altered the withholdings on the occasion in which the delegated powers were expired.

f) Who can take legal action? The question arises about active legitimation, that is, if the producers can claim the return of the withholdings, since they are not the ones who pay the tax directly, but rather the cereal companies and other exporters who act as withholding agents and enter the tax into the State (they deduct the amount of the withholdings when buying the grains from the producer and later, when exporting, they pay the specific duty. In the case of soybeans, it is 35% of the FOB value).

It is encouraging that there are no doubts in protecting, by our Judges, the Constitutional State of Law. However, through the prism of law, that defense represents the defense of the obvious. It is as if it were necessary to prove that plants flower in spring.

Alejandro C. Altamirano