LA INTOLERABLE OPRESIÓN FISCAL MUNICIPAL.

An important ruling has recently been issued against the intolerable oppression of the municipal taxation of the Province of Córdoba. The Court of Appeals of Córdoba, to achieve the cessation of the withholdings of the tax called “Contribution that affects the Commercial, Industrial and Services Activity” (art. 231 of the Municipal Tax Code) suffered by many companies that do not have a local or establishment located within the Municipality of Córdoba.

Although in 2009 the Supreme Court of Justice of the Nation (CSJN) declared unconstitutional the application of this tax to those who do not have premises in the territory of the Municipality (“Laboratorios Raffo” case, and others in the same sense) in practice The Municipality of Córdoba continues to receive the tax through a withholding regime, under which clients based in that City, from companies located outside of it, withhold a percentage of their payments on account of the tax (all under a system created by Resolutions SEyF Ciudad Cba No. 240/2003 and DGR Cba No. 22/2003). Many companies have even resigned themselves to registering as taxpayers, since the consequence of not doing so is that the withholding rate is multiplied several times.

The novelty lies in the fact that at the end of 2010 -at the initiative of a business chamber- a declaratory action of certainty was filed in the terms of the Procedural Code of the Province of Córdoba, with the underlying objective of declaring the tax of the municipality of Córdoba, and the regulations that establish the aforementioned withholding regime, and -in addition- requesting a precautionary measure to suspend the application of said regime with respect to the litigating companies.

After more than a year of discussions (the Court of First Instance declared itself incompetent and denied the injunction), the Provincial Court of Appeals in Civil and Commercial Matters of Córdoba recently issued a resolution upholding the proposal and specifically:

1. It declared that the civil and commercial jurisdiction is competent to deal with this action (this was very difficult to decide due to a procedural technicality derived from the circumstance that in Córdoba there are no courts of 1st instance with contentious-administrative jurisdiction);
2. It granted the precautionary measure in the terms requested by us, that is, ordering the Municipality to suspend the withholding regime. The ruling is dated 06/22/2012, and was issued in the file “Unilever de Argentina S.A. y otros c/ Municipalidad de Córdoba s/ declarative action of certainty”.

The issue is an absolute leading case in terms of the route chosen (declarative action in the provincial jurisdiction, on which there was almost no experience in tax matters) and in terms of the intended immediate objective (precautionary to suspend the withholding regime).

The fact that the companies are registered as taxpayers is not an obstacle to initiating this action (in fact, all the companies in our case were).

This is merely global and indicative information that may be of interest to those companies affected by this local regulation, since the ruling opens up a very specific possibility of definitively freeing themselves from the tax payment.

ALTAMIRANO & ASOCIADOS.