DECLARATION OF UNCONSTITUTIONALITY OF RESOLUTION 125/2008 OF THE MINISTRY OF ECONOMY AND PRODUCTION. CUSTOMS RETENTIONS. RETURN OF THE SUMS OF MONEY PAID BY THE AGRICULTURAL PRODUCER.

The National Chamber of Appeals in Federal Administrative Litigation, Chamber II, in the precedent “Gallo Llorente, Santiago Emilio and another c/ National State” declared the res. 125/2008 of the Ministry of Economy and Production and its amendments. On the contrary, it did not admit the unconstitutionality of art. 755 of the Customs Code. In the ruling, it also ordered the National State to pay the plaintiff the positive difference in value resulting from the application of res. 125/2008 of the Ministry of Economy and Production, modified by its similar 141/2008 and concordant, and the one that would have corresponded by application of the pre-existing norms to the dictation of the mentioned resolution.

The ruling was divided. In favor of unconstitutionality were the votes of Drs. Marta Herrera and Guillermo P. Galli and against the vote of Dr. Carlos M. Grecco.

The notable arguments of the producer’s claim accepted by the Federal Chamber are summarized in the following considerations:

a) Legitimation for the claim. The National State argued that the plaintiff lacked legitimacy because being an agricultural producer, in truth he is not the passive subject of the export duties but the exporter, who is the one obliged to enter. However, the Federal Chamber considered that, although it is true that export duties are levied on the extraction of merchandise from the customs territory for an indefinite period of time (arts. 724 and 725 of the Customs Code) and that the law in force at the time of registration is applicable of the application for export destination for consumption made by the exporter (art. 726), obliged to enter it according to the forms and terms established for the particular case, the truth is that it cannot be ignored that the so-called “withholdings” turn out to be shaping the sale price obtained by agricultural producers.

Therefore, if the exporter is a person other than the one who produces the good, the tax will be moved “backwards” and in the distribution chain the exporter will pay the producer a lower price in order to reestablish his profit margin, diminished as a consequence of the export right. In other words, the tax has an economic impact on the agricultural producer.

The Federal Chamber adds that if the Administration through the regime created by the Resolution in question recognized the right for some small producers, who meet a series of requirements, to obtain compensation by virtue of the effects that arise from the application of the questioned Resolution No. 125/2008, it is inadmissible, according to the principle of good faith and the doctrine of own acts, to disregard the power of other producers to judicially challenge the mentioned norm, alleging their lack of active legitimacy.

In short, the ruling resolves a vital issue in the strategy of the judicial approach in terms of active procedural legitimacy, confirming that it is the agricultural producer who is affected by the system in crisis, even when in fact it is a step behind in the export process.

b) Admissibility of the remedy of amparo.

The path chosen was also questioned. The amparo action provided for in art. 43 of the National Constitution is expeditious and fast, safeguarding constitutional guarantees, including the right to be heard with due guarantee and within a reasonable time by competent, independent and impartial judges and courts through a simple and fast appeal. or any other effective remedy that protects people against acts that violate their fundamental rights, even when such violation is committed by those acting in the exercise of official functions (arts. 8 inc. 1 and 25 of the American Convention on Human Rights “Pact of San José de Costa Rica” – of constitutional hierarchy according to article 75, paragraph 22) of the Fundamental Law vid. Room II in re “Pose León José Luis” of 04/15/2002).

The National State questioned this procedural route. However, the Federal Chamber admitted this procedural choice. To this end, it was based on what was decided by the Supreme Court of Justice of the Nation, which in various precedents stated that “whatever the procedure through which a justiciable question is proposed to the judges, no one can take away from the Judicial Power the inalienable attribution and the obligation it has to enforce the National Constitution and, in particular, the personal guarantees it recognizes.” (Faults: 267:215 “Outon”; Faults: 313:1573 “Peralta” and Faults: 318:1154 “Video Club Dreams”).

Verbatim, the Federal Chamber affirms that “it cannot be lost sight of that the processing of an ordinary process can harm the actor if the modality of agricultural activities and the time and capital that the planting and harvesting of its products take into account. . Especially when in the case, the defendant had the opportunity to adequately defend his position and the necessary elements are available – in light of what has been indicated – to resolve the issue.

c) Tax nature of customs withholdings and full validity of the principle of legality.

Another interesting aspect of the ruling lies in the legal nature that they assign to the withholdings and that we argued on several occasions: it is a tribute. The National State -in the case- denied having assigned a tax nature to the export rights and warns that there is no constitutional provision that establishes the impossibility of this matter being the object of legislative delegation.

The ruling indicates that tax resources are those that the State obtains through the exercise of its taxation capacity, through laws that create obligations in charge of subjects in the form and amount that said regulations establish. The common characteristic of tax resources is their obligation by rule of law, this being the source of tax obligations within the framework of the powers and limits established by the Constitution.

In addition, the Federal Chamber pointed out that “customs duties” both in the doctrine and in comparative legislation use such an expression to refer to the taxes levied on imports and exports. Thus the name of the World Customs Organization in its Glossary of International Customs Terms of 1995; Brazil designates them as “customs taxes”, in Paraguay “customs taxes”; the English expression is “customs duty” and there is a historical reason in the fact that the payment of this type of tax was an essential condition to obtain from the customs service the authorization (that is, the right) to release the merchandise to the internal market ( to the plaza), send it abroad or, in short, to affect it to another customs treatment.

Consequently, in the case of taxes, the Federal Chamber dismissed the grievances of the National State that deny the tax nature of the disputed rights. In this same line of argument, the Court entered into the study of the constitutional jurisdiction established in its regard. This is so, because the principle of tax legality includes the genus, and therefore is applicable to all its species. In sum, due to the fact that only the National Congress can put its hands in the taxpayer’s pockets, due to the incontrovertible validity and respect for the principle of legality provided for in arts. 17 and 19 of the National Constitution, there can be no tribute without a previous law that establishes it. It is absolute, does not admit any exceptions and reaches both the creation of taxes, rates or contributions, as well as the modification of the essential elements that compose it: taxable event, aliquot, calculation base, subjects covered and exempt.

d) Faculty of judges to analyze issues connected with the extrafiscal nature of taxes.

The Federal Chamber did not fail to rule on the reasons that justify ruling on the non-fiscal objectives of the taxes. The sentence points out that although it is not proper for the judges to judge about the opportunity, merit or convenience of the extra-fiscal purposes or objectives taken into account by the legislator when establishing, modifying or eliminating taxes or levies (conf. Doctr. of Rulings, among others: 150:89; 249:99; 301:403; 306:788; 308:1631; 310:2193), however, the existence of such objectives does not prevent the courts from ruling, in the cases submitted to its jurisdiction, on the legitimacy and scope with which they have been established in accordance with the Argentine legal system (conf. Judgment doctrine 315:1361; 320:2509; 321:3487; 325:2394; 326:4651).

In this sense, the jurisprudence of the Supreme Court of Justice of the Nation held that no tax burden can be demanded without the pre-existence of a legal provision framed within the constitutional precepts and collections, that is, validly created by the sole power of the State. invested with such powers (Rulings: 316:2329; 318:1154; 319:3400; 326:4651 and their citations, among others).

Therefore, the export rights have an undoubted and indisputable tax nature and, as such, are covered by the principle of legality provided for in article 17, third paragraph, of the National Constitution. In this way, on the one hand, the principle of tax legality in terms of export duties is established (art. 754); and, on the other hand, according to the provisions of the Customs Code and the applicable laws, the Executive Power is delegated the power to tax this export right for consumption of merchandise that has not yet been taxed and to modify the right of export already established (art. 755). There is no reference to any ministerial body, nor is it authorized to sub-delegate the exercise of said competence.

In short, it is a sentence that rescues the value of Justice in a very controversial issue for the country.

Altamirano & Asociados.