(From the context of the prerogatives of the State and the rights of the taxpayer)

The Tax Contentious. I encourage that there is an extended criterion, in all the actors of the tax phenomenon, in the sense that the feeling of defenselessness of the taxpayer before the persistent, sustained and huge advance of the prerogatives of the Tax Administration is constant. The origin of the growth of such prerogatives is certainly found in the encrypted nature of many businesses, the complexity of some tax engineering that are implemented and the natural desire of taxpayers to always place themselves in the most advantageous tax situation.

The tax contentious is the stage no longer of dialogue but of procedural combat between the administration and the taxpayer. In the tax procedure, where many of the causes that then reach the judicial contentious, the debate, the evidence and arguments are usually dismissed. It will be that what Tipke pointed out in the sense that “the Treasury officials do not usually stop to consider the meaning or lack of meaning of the legal precepts” 1.

The tax relationship is not a relationship of power but a legal relationship. This characteristic must dye, as a distinctive note, to the tax contentious. This firm and closed definition that moves away our discipline from all authoritarian gases distillation. The exercise of state power constitutes an instrument placed at the service of the full validity of the rights of the citizen, in our case, of the taxpayer, even when the order contains regulated discretionary powers and several prerogatives for the control of the obligation in the hands of the State . However, it does not place the State in a plane superior to the taxpayer and it does not submit to that but links within the scope of a tax legal obligation. Nawiasky, taught that the tax legal relationship is between equals: State and taxpayer, that is, from a formal perspective there are no unevenness in that relationship. The tax obligation is not a power relationship, it is a credit relationship and if we start from this fundamental data, arbitrary discretion must be interdicted. The legal equality of such parties expels (or the less limits the discretionary powers of the administration. “… The right to demand and the obligation to fulfill are exactly the same both in private law and in public law, and equal if we consider the legal consequences of its breach, since, in both cases, the state execution is given to achieve its realization. Therefore, creditor and debtor are in the tax obligation, formally, one in front of the other, in the same way that occurs in the private obligation, both subjects, in terms of their right and their obligations, are equally determined by the rules of the ordering legal. Hence, when talking about equal subjects of private law, it must be considered, in the same way, that there is also such equality in the tax obligation. This basic fact is not affected at all by the fact that the State is not only creditor, subject to the credit, but also legislator, active subject of the legal system … It is false to consider that the State as the holder of the Tax Credit has a higher position to the debtor. His will against this is not a decisive will of an autonomous nature: on the contrary the State can only demand what the legal system has granted. This is understood, even more easily, if you think about municipalities which, as tax creditors, cannot demand what state legal norms have not authorized them ”2.

In the same way, Valdés Costa said that “… both parties of the legal-tribreter Your own cause. It seems unnecessary to clarify that by mentioning the statement to “both parties”, the active and liability subjects of the obligation are referring, that is, creditor and debtor, and not to the State as the creator of the obligation, or to the recipient of the product of the product of the product of the Collection … It is specified that the principle is limited to equality between the administration or treasury of the credit created by the law, which only has the rights that the law assigns “3

However, even when the contentious – in its procedure facet and then in the process of the process – develops in a plane of equality between the State and the taxpayer, that equality in the facts is blurred. Of a simple review of the wide spaces where the prerogatives of the State acquire dramatic intensity as an example can be stated: 1) The flexibility of the State to establish short deadlines to taxpayers for the response of requirements and compliance with various formal aspects of the tax obligation; 2) the plethora of presumptions in favor of the treasury; 3) the possibilities of indirect and objective estimates, the valuation rules; 4) The discretionary decision -making powers in the matter of production of evidence in the administrative procedure and the investment of the burden of evidence when the Treasury imputes to the taxpayer a certain anomaly; 5) the powers of caution and protective measures of public credit; 6) the existence of Solve et repeate; 7) The authorization of instance in the administrative procedure by which, ex officio, the fulfillment of the requirements of the administrative contentious action is controlled when these aspects could be verified incidentally and not be erected in a condition of access to the jurisdiction; 8) The suspension of the execution of sentences against the State among many.

1. Common notes in the tax contentious of the countries of Romanist or continental legal tradition.

a)

Procedure limitations. Valdés Costa believes that the diversity of solutions in the tax and administrative field related to the tax courts is due to the influence exerted by the German current, with the creation of the Reichabgabenung Fiscal Court, of 1919 translated- in Italy- in the Tax Commissions; The French experience of the State Council and the American experience of the Tax Court. “The common foundation of the creation of specialized and independent courts can be found in the general and justified belief that the classic judicial bodies were not adequate to resolve tax controversies due to their lack of specialization in such a complex legal branch by their Linking with the economy and fiscal technique, as stated in this century in Tax Law, and also by the characteristics of ordinary judicial procedures, organized based on principles and formalities conceived more for the resolution of particular conflicts, that for those who consider between the State and the administered. ” Also the separation of powers incorporated into the constitutions that prevents each of these from pronouncing the validity of the acts of others. “From there, says Valdes Costa, the favorable tendency to create administrative commissions or courts, more or less suitable and independent, a solution that, in turn, raised constitutionality problems that received various solutions not very orthodox” 4.

The constitutional principle of division of the powers of the State entails that all the activity of the State is susceptible to judicial control. The tax contentious, involves two phases not always clearly distinguished such as the procedure and the judicial process, do not escape that principle.

Linares Luque warns about the great relief acquired by the activity of ex officio determination of taxes in the hands of the Tax Administration, in point at the birth of contentious procedure, certainly motivated by the predominant central position that the tax obligation has. Therefore, “the confluence of various factors have consolidated an increasingly accentuated trend towards an increase in the qualitative and quantitative importance of other powers granted in favor of the administration by tax laws, which cannot necessarily be reviewed through of the resources admitted against the determination ex officio. A overwhelming manifestation of this trend can be found in the multiplication of formal duties in charge of the administered, and in the increasing Scarce human resources in verification tasks, which has even become the scope of substantive tax law, neglecting on many occasions the rigor required by the constitutional principles that govern the exercise of the power of establishing taxes. ” All this generates effects on the tax procedure by creaking the procedural mechanisms and causing the need for guardianship that individuals often require5.

The tax procedure is clearly identified with the procedural mechanisms contained in the tax regulations of each country that allow the taxpayer, to channel the controversy that the Treasury intends about the obligation to contribute. Subsequently, the process will imply the judicial control of the acts of individual scope of the Tax Administration. Both procedure and process must observe the general principles derived from the constitutional system that serve to strengthen the justice value.

A paradox, although constitutional root, stains the tax procedure. The Courts of Administrative Jurisdiction are forbidden to pronounce on the constitutionality of tax regulations. The substantial part of the cases that arise, these principles are those that are at stake. Therefore, the intervening court, at least in the first stage of the process, when it is of administrative jurisdiction, cannot declare the unconstitutionality of the norm in question.

Another paradox is the validity, at least wasted, from Solve et repeat, in some cases as a condition of access to jurisdiction. It is also warned, in several systems, the impossibility of the granting of the taxpayer of precautionary measures that protect him from possible preliminary attacks of the Tax Administration. The courts, usually argue that the normal perception of public income must be protected, for this reason such type of precautionary measures are not granted.

b) Need for extension of the jurisdiction of the tax courts.

The tax courts provide a great service to the State and taxpayers, therefore, formed by professionals focused on the tax matter, guarantee a study and resolution carried out by specialists. However, in addition to the need to provide them with more and better material structures, their competence should also be expanded to cover each and every tax issues. Many times, the laws of application cut the taxpayer the debate in these courts dedicated to the issue for reasons of competence. Thus, taxpayers lose an important element in contentious matters: the suspension of the execution of the position pursued by the State.

c) Importance of proof of the facts in tax matters.

The principles and institutions of the civil and commercial process inexorably influence the tax contentious. As well as the codes of the civil and commercial procedure, they have broad details on the test, in tax matters we usually do not have a clear and concrete reference to this kind of evidence, so we refer to those systems in a supplementary way.

The process has the search for a formal truth, the truth of the process. However, the test has other horizons, sometimes oblivious to that formal truth: what is about the test is to arrive at the accreditation of the facts. In tax matters this is essential. In the face of the tax procedure it is usual to find resistance, by the administrative authority, to turn fully in the proof of the facts of the matter that she herself pursues, for example, denying evidence offered by the taxpayers based on their inefficence .

The punctual question lies in knowing whether it is possible to use in the procedure and in the tax process evidence that is not regulated by the law more usually called “atypical” or “unnamed.” Taruffo says that it is “a situation in some curious and probably unique sense: in all the systems there are the evidence that in Italian doctrine are called atypical, but do not produce particular problems to the extent that they are normally admitted, in the field of the Documentary test or in the test by indications or presumptions ”6. Those who do not admit this kind of evidence, are based on a central argument for rejection, which is that there is a taxable catalog of admissible tests therefore, if they are not planned in that list, the atypical test is not admitted. For example, the documentary evidence for its characteristics is an extremely broad evidence, which is why it can include a vast range of atypical documents such as verbal, private or extrajudicial experts, administrative documents and something that is found in Franco growth in the probative catalog: computer documents. Just think about the evidence of email. These are all atypical but we do not believe that, because they are not in a list, they cannot be admitted by the judge.

On the contrary, those who admit the possibility of the use of atypical tests is based on two data: a) on analogy, so that atypical tests in some way are linked to other typical tests; b) in which the legal list of the tests often contains linguistic elements that admit this kind of tests, for example in the presumptions from which the most diverse evidence and documents can be extracted, which can generate very different elements of conviction.

Tarufffo continues, pointing out that it should be considered “the main reason why a evidence must be admitted in trial is not at all the existence of a norm that is occupied with it (which often there is no) but the utility of The evidence for the determination of the facts. From this perspective, it is “proof” everything that logically serves to prove the fact, not what the law calls “proof.” Thus, it can be assumed as a general principle of reason, rather than as a legal principle, the rule present in the ordinances of Common Law according to which any relevant evidence must be admitted, except that there are specific rules or reasons to exclusively.

In conclusion, and following Taruffo, “the limitation of the value of the atypical evidence is, therefore, unjustified only theoretically: it is also practically inadequate. Therefore, the determination of the value of the atypical evidence cannot and should not be linked by predetermined legal criteria and must, consequently, be left to the judge’s discretionary assessment. Therefore, there is no difference, from this perspective, between the atypical tests and the typical tests submitted to free assessment, in the sense that the evidence of both types must have in the specific case the effectiveness that derives from their ability to found rationally the determination of the fact. There is nothing strange, because, in which the fact can be determined on the basis of atypical evidence, or of a single atypical test, or that an atypical test is opposed or overcome to a typical or decisive test in the conflict between typical tests. Actually, results of this type cannot raise perplexity if the assessment of the tests – typical and atypical – is carried out through rational and controllable criteria ”8.

We cannot glorify a list of means of evidence as reason enough not to admit others, if what matters to us is the search for the truth of the facts. To admit atypical tests we can simply observe that no list, however neat it is in its preparation, will be definitive and closed because it contains the enumeration of all possible evidence. This cannot be so, we would have the wrong idea that human invention can consider and cover all the factual circumstances. In sum, every means of proof, still atypical, are important if we intend to arrive at the proof of a specific fact.

2. Prerogatives of the State and discretion.

The existence of discretionary powers in favor of the Tax Administration is marked by strong questions, which can easily be appreciated that the tax contentious is analyzed in its facet of administrative procedure. It may or may not coincide with this strong and critical value judgment, it can even be considered as alarmist and unfounded. But those who have faced the practical experience marked by arrogance, procedural zancadillas, ambiguities and dark The veracity of these expressions and concerns.

There is a very evident point of tension, within the framework of the taxpayer’s relationship with the administration: it will exercise its discretionary powers to pave its path aimed at determining the tax, the taxpayer, on the contrary, battle so that that discretionary power does not It translates into a greater tax burden than the law does not admit. If that battle is fought within the confines of legality, without the exercise of discretionary power affecting some essential element of the taxable event, the taxpayer may not wield any aggravity attenable. The opposite, that is, such faculties are used to extend the configuration of the matrix rule of incidence at levels that the law does not clearly admit, such circumstance will be contested.

I find it suggestive to resort, in the first place, Dworkin who delimits the concept of discretion, taken from common language by positivists and taken to the normative world, considering it a “relative” concept because on this subject the interpreter must formulate the question: discretion ¿¿ according to what norms and according to what authority? The Oxford professor points out that “the discretion of an official does not mean that he is free to decide without resorting to sense and justice norms, but only that his decision is not controlled by a rule provided by the particular authority9”. Reflection only emphasizes the obvious: by greater discretion that is intended, it is subject to the empire of the law. These are the edges that cannot be transferred and who defines whether or not, is the judge in a sentence.

Charles Evans Hughes, being president of the US Supreme Court, sentenced “we live under a Constitution but the Constitution is what the judges say it is.” The famous expression of Hughes tells us that judicial control is the only one apt to deliver the discretion that exists in every interpretation. Recall that this concern to draw the limits is long data, it is enough to refer to the Napoleon code that restricted the interpretation of the judges to the maximum (although their impracticability in the cases of lagoons forced the judges to seek the legal solution in the custom in the custom , The general principles of law, in equity or in natural law).

But the law is often undetermined, incomplete, of open texture, diffuse edges which generates broad margins of discretion. This causes the need to try to limit the discretion of the judges, particularly when it comes to the constitutional law, but any modality that is adopted will not be effective because, as Alvarez González states, “if the supreme judges are determined to reach a solution that Personally they want, he has the power for it ”10. Possible means to mitigate discretion are the text of the norm, history and structure of the Constitution, the collegiate nature of the highest court, public opinion, the obligation of judges to motivate their decisions11.

Discretion implies the freedom to adopt one or another way, for this reason it is precisely in the administrative acts issued in the exercise of discretionary faculties where the demand for motivation is more important, because if “discretion” matters freedom of choice between two or More equally fair solutions, having chosen one, is the duty of the administration to justify why of such choice, and – in parallel – why the elimination of the other solutions.

Going directly to the tax plane, the worrying is that discretionary faculties can affect an essential element of this discipline that is the configuration of the taxable event. If, as a consequence of the exercise of an administrative power arbitrarily, it translates into the obligation to enter a tax in a way that the Tax Law does not clearly admit, we will face the alteration of another essential principle of the taxpayer, which is the principle of legality12. In other words, there is a governing axis from which the conceptual approach of discretion cannot be moved: the action of the public administration, regardless of the nature of its power, is subject to the law and law.

But as regards administration management- not the configuration aspects of the taxable event- the administrativists affirm that the functions in charge of these agents of the Administration are, in most cases, exercised markedly discretionary (for example, appreciation of the test). Here is the importance of this issue. Discretion does not imply an action according to what the official considers appropriate and fair, but “the integration of the norm, according to the immanent and objective values ​​of the order. In this broad sense, the law contemplates justice in the general and abstract case while discretion operates just in the specific case13 “. Thus there are two statements: the first, to maintain that there are no powers whose exercise is absolutely discretionary, since this would be equivalent as much as denying the application of the principle of legality, and the second, to affirm that the freedom of appreciation, which is left to Administration in discretionary activity cannot become an arbitrary exercise of such functions14.

One of the weakest points of the exercise of discretionary power of the Tax Administration lies undoubtedly, in the validity of the Principle of Legality, which ban the departure of the Law on Tax Matters. The typical hypothesis of discretionary activity develops within the power of choice between several possible solutions. In our tax law it appears in issues of procedural (as will be referred to later in issues of granting extensions; of special deadlines for the income of taxes; of decreased sanctions, etc.) although less in what is linked to the taxable event ( by the impassable mold)

The fact that the administration has discretionary functions does not imply (in addition to being interdicted for the configuration of the taxable event or the application of sanctions, as expressed above) that this attribution has no limits.

The demarcation limits appear with the elements actually regulated15 and, on the other hand, by the general principles of law16, such as 1) the interdiction of arbitrariness, 2) the interdiction of the deviation of power, 3) the principle of legal certainty, 4) that of equality, 5) that of proportionality, 6) the law reserve and the 7) self -supply, among others.

2.1 Interdiction of arbitrariness.

Arbitrariness is whim, voluntarism and unreasonable. It is the consequence of the exercise of discretion outside the law. It appears when there is no foundation of the act; When the test is dispensed with or there is no evidence to guarantee the act; When the act does not respect the principle of coherence, which in turn arises when there is no logical relationship between administrative evidence incorporated into the file and the act.

Legal certainty implies compliance with the law by the administered and the administration, and the essential aspect of the concept is that it can be given in the application phase of the norm will be the interdiction of arbitrariness in its two planes: from a formal perspective, Such an interdiction consists in subordinating the acts of the administration to the law, and from a material perspective, it implies rejecting situations that, “without violating the hierarchical order of the norms, undermined the right of the citizen to a knowledge as quickly as possible and the more in accordance with its rational forecasts of the incidence, which in its particular sphere can have the application of the legal norm. Although it is impossible to exhaust in a description all the situations that could be included here, this arbitrariness can appear in any phase of the applied process above, so that it can be affirmed that the integrative work that leads to situations in which it is difficult to anticipate by the citizen which will be the norm to apply with respect to their behavior ”17.

2.2 Interdiction of power deviation.

The deviation of power made by the administrative judge when it acts with an ostensibly different purpose than the one pursued by law. Sometimes it can happen that the exercise of the power agreed to the official by a standard is exercised antifunctionally and without the adequate assessment of all the circumstances that concur in a specific case.

We face the deviation of power in all those cases in which the official acts for a different purpose of the one pursued by law; When the law has an express or implicit objective, clearly originated in the normative text, the powers granted to the official are finally fulfilled that this purpose provided by the standard is fulfilled. Therefore, when the official departs from the aforementioned purpose, his conduct becomes unlawful, that is, said official was not legally empowered to use the power granted by law outside the purpose of the purpose provided by the norm.18 This vice of the act Administrative, which had origin and special importance in France based on the resource due to excess power, is based- in the opinion of Rivero and Waline- that the administration, unlike individuals who can freely choose the purpose of their actions, has imposed a purpose that your act must pursue. Thus, the vice of deviation of power is one that affects the act by which the Administration pursues a different purpose than that has been previously assigned by the Law, thus diverting the legal purpose of the power that has been conferred on it 19.

2.3 The guarantee of legality.

After the rigorously broad and exhaustive Casás thesis on this guarantee was published, little can be said about the matter. I limit myself to emphasizing with the aforementioned author that the constitutional principle of legality is an impassable limit of discretion because only the legislator can select certain circumstances and facts and raise them to the legal category obligation20. Lord Acton pointed out that it is a principle that no tax is legitimate if it has not been approved by the class that pays it, that is, “taxation is inseparable from representation” and this is not a privilege of some countries but a right of all . “No prince in the world, said Felipe de Commynes, can establish the tax or a single penny without the consent of the people.” 21. For this reason, the Administration cannot be founded on discretionary criteria resulting from the norm – to extend through such criteria, the taxable fact to extremes that do not result from the norm. This would violate the principle of legality that is a taxpayer guarantee.

The fact that the norm is poured on objective situations, woven by facts and through behaviors that are collected from reality and in that way the matrix rule of incidence, graphic expression coined by Barros Carvalho22, is not kept. The subsumption of the facts to that legal reality implies interpretation, “its construction- says the cited author- is the work of the interpreter, as a system organ or in the condition of any interested party, but must always start from the sensory stimuli of the sensory stimuli legislated text (reducing the right to written form) ”. But that task, which entails discretionary criteria, cannot authorize to interpret the norm leading to the nucleus of the parent rule a hypothesis not provided by law, only by interpretation because, if that happens, the limit that this constitutional guarantee projects would be violated .

It is necessary that both the State and the taxpayers are slaves of the law to live in freedom, therefore, together with Gandra da Silva Martins23, Xavier24, and Navarro Coêlho25 I cling to the most restrictive principle in this matter.

2.3 Self -protect.

The exercise of discretionary administrative powers is conditioned by self -supply, however, this self -limitation does not work regularly, so the important thing is the full submission of the administration to the law and the law. And this submission implies the evolution of the issue in favor of a gradual increase in the legalization of such powers. Casado Ollero affirms that “the possibility of control constitutes precisely the essential and defining note of the juridicity of any public power and, as far as our scope is concerned, it is not exaggerated to affirm that the juridification of the tax powers and the relations between Administration and taxpayers will not be completed until the control and reaction mechanisms of the taxpayer have been prosecuted against the tax claims, with the full submission of the administration to the jurisdiction and articulation of an effective system of guardianship and guarantees that although exercising in jurisdictional headquarters, they would already harvest its first fruits in the tax management procedure ”. In the same sense Moreno Fernández27 in his specific work on the issue under analysis.

3. The Tax Contentious. Jurisdictional review of the administration’s acts.

All the actions of the Tax Administration such as that of the Administrative Jurisdictional Courts is subject to the judicial review. This has a constitutional basis in all countries because it would not be possible for a tax determination to be firm only with the action of the State.

The rules of recursive procedures and processes in tax matters make up the tax contentious and is one of the transcendent issues of our matter. The process, as a series or succession of acts that tend to the performance of a claim founded through the intervention of organs of the states instituted in this regard, can be divided into two parts: the first cognitive and the second execution.

The administrative procedure is previous, precedes those and is formed by the steps aimed at verification the adequate and complete compliance with the tax obligation. When the State, empowered for this, after such procedures establishes that the tax income does not conform to the law, the Treasury determines the taxable matter, within the framework of a discussion procedure, with possibilities of allegations, evidence and adequate debate to conclude in the administrative act of debt determination.

This act is appealable before the judicial bodies and administrative jurisdiction. There will always be the possibility of the judicial review instance.

The taxpayer must have the power to resort to the Judiciary without paying taxes, their interest and update. The protection of taxpayer rights requires intervention in the substantiation of the cause of a competent judge or court that integrates the Judicial Power of the Nation.

This unfair and outdated collection has no grip in comparative legislation, being able to indicate as an example that Uruguay repealed it for a judgment of his Supreme Court of Justice, in 1959 repealing him by law in 1960; In the same way, the Italian Constitutional Court was pronounced in 1961; The tax laws of Venezuela and Peru have also repealed it. In Germany against the opposition to the fiscal claim, bond is required but not the payment; In France there is no prior payment requirement to discuss tax issues at administrative and judicial headquarters; In Mexico a deposit is required but not the payment. The Tax Code model for Latin America proposed the suppression of the previous payment.

The American Convention on Human Rights distorts the Solve et Repete principle in the Argentine ordinance. Article 8 paragraph 1 of the aforementioned pact established that “every person has the right to be heard, with the proper guarantees and within a reasonable period of time, by a competent, independent and impartial judge or court, previously established by law in substantiation of any criminal accusation formulated against her, or for the determination of their rights and obligations of civil, labor, fiscal or any other character. ”

The express reception of the fiscal matter affects two aspects: (1) on current national and provincial legislation, implying the tacit repeal of that which is incompatible with the pact, or the obligation to issue the rules that are necessary to make effective the Rights and freedoms covered by him and, (2) on the possibility of appealing before the Commission and the Court in the case of violation of such rights and freedoms28

4. The constitutional principles linked to judicial review of the acts of the administration. Effective jurisdictional protection.

A broad spectrum of constitutional guarantees is inexorably projected on the tax contentious fused all in the general principle of effective jurisdictional protection. This guarantee has its roots in the procedural aspects of the treasury tax relationship. The following contents are made up: a) due legal process, b) defense of the person and rights, c) protection of rights and access to jurisdiction (abandonment of the “solve et repete”) and d) precautionary guardianship

It is an inherent right to the human person, as in 1723 it was pointed out in famous English precedent “Dr. Bentley’s” in which it was decided that a person could not be devoid of academic titles or degrees, without previously he had been informed and given The opportunity to answer them. The judge points out that God gave Adam and Eva the opportunity to defend themselves, when asked if they had eaten from the prohibited tree29.

4.1 Due legal process.

This is the so -called “adjective process” which is integrated with the right to be heard -this is, to expose the reasons for its claims and defenses before the issuance of acts that refer to their subjective rights and legitimate interests – , to offer and produce evidence – which is integrated with the duty of the administration to require and produce the necessary opinions and reports for the clarification of the facts and of the objective truth, all with the comptroller of the interested parties and their professionals – and to a Founded decision.

García de Enterría and Fernandez teach that: “There is no … no frank or free space of law in which the administration can act with an ajuridic and free power. The acts and the provisions of the administration, all, must submit to law , they must be in accordance with law. Image, disagreement, constitute a violation of the legal system and deprivates them, currently or potentially validity. The right is not therefore, for the administration an external border that indicates out a prohibition zone and within which she can produce with her sole freedom and arbitration. On the contrary, the right conditions and determines, in a positive way, the administrative action, which is not valid if it does not respond to a normative forecast … “30

4.2 Defense of the person and rights.

The right of defense is closely linked to the constitutional guarantee of due process and also includes other rights that arise from it, such as the right to be notified, to be informed of the position formulated; to have an audience and be able to carry out the corresponding discharge; to literate assistance; to become part; to have access to the file; to be heard; To present evidence and allegations and to resort to decisions. They are all these rights, manifestations of the right of defense to which I refer next.

One of the central motivations of the process of coding processes of any administrative procedure among which the tax procedure is listed, lies in the search to effectively guarantee the right to defense.

All modern constitutions enshrine this right, but even if it is not expressly appearing, it has been traditionally guaranteed, whether by jurisdictional or before the Administration. In terms of administrative procedure, the right of defense has been considered not only a derivative of justice, but also necessary for efficiency, since it ensures better knowledge of the facts, guaranteeing a more just decision.

In this aspect, subderivations of the principle appear as:

1. The right to be notified that it governs not only with respect to the decision made, but also of all the acts that arise during the processing of the procedure. The notification of any administrative act assumes particular relevance because it is necessary that it be communicated to have full legal efficacy. The effective notification is a right of the administered and a legal guarantee against the activity of the administration representing, in addition, a support of legal certainty.
2. The right to be informed of the position, because how the taxpayer could make his defense if he is not informed of the nature, scope and fudies of the administration’s claim.
3. The right to be heard that implies that the administration must give the interested party before deciding an issue that could affect the legitimate, personal and direct rights or interests of it. This right includes two obvious extremes such as the right to an audience and to produce the discharge and the right to the pronouncement of the administration.
4. The right to claim and prove, that it is a consequence of the right to be heard, the right to formulate allegations and defenses, and present evidence at any time of the procedure and of course during the hearing. In general, all means of proof of private and criminal procedural law are admitted.
5. The right of access to the file, because those interested have the right to know the state of processing of the file. For this, the file must be unique, that is, it must physically be one, although several administration agencies intervene. But when there is the confidentiality qualification of some documents, they may be filed in bodies separated from the file. Access to the file also implies the right to read, copy and request a certified copy of it. The interested party must accredit his representation to make contact with the file.
6. The right to resort, which implies that the exercise of jurisdictional activity recognizes, at least, a double instance must be preserved as the right of defense of the taxpayer, therefore before the fiscal claim that has the right to appeal before a competent court.
7. The right to not self -criminalize, which still reflected in modern constitutions in the jurisprudence of many countries is observed some resistance to consider this guarantee for tax purposes. This is why Lisicki points out in a formidable work on this issue, he did not observe a punctual discussion by the constituents, perhaps because of the conviction of this clause that obviously considered essential for due respect for the dignity of the individual subjected to the process. “This absence of any preliminary discussion prevents determining the reason for the suggestive departure in the drafting of the guarantee against self -incrimination present in article 18 of our Magna Carta, regarding the way in which said guarantee is found in the US Constitution. Thus, while our Constitution prescribes that “no one can be forced to declare against himself”, the fifth amendment of the US Constitution provides that no person can be compelled in any criminal case to witness against himself “no person … Shall be compelled in Any Criminal Case to Be a Witness Against Himself… ” Even a superficial comparison between both texts reveals, at least, a difference that, seriously taken, has legal consequences of maximum importance. Indeed, it is evident that, while the “American guarantee” operates exclusively in criminal (criminal) causes, the “Argentine guarantee” operates without such restriction: to be in the unequivocal text of our guarantee, it governs with absolute disregard of headquarters (administrative, judicial) and of matter (criminal, civil, commercial, tax, etc.) ”. That is, the Argentine constitutional guarantee has a lesser extension than the American ”31. Also on this guarantees they indicate Ribes Ribes, and Núñez Grañón, point out that “it is possible Oath ex officio ”) to the suspects of having committed heresy. During the sixteenth and seventeenth centuries this mechanism was also used in England by the “Court of Star Chamber” in order to discover those who criticized the king. With the passage of time, oppositions were arising to such a system that they found their support in the principle according to which “it is not possible to make a person the misleading instrument of their own sentence” (“Man Could not be made the deluded instrument of His Own Conviction ”), doctrine that extended not only in relation to the special processes mentioned above but, thanks to the evolution of the Common Law, respect

The right to declare against himself has been the subject of controversial debate in numerous decisions of the US Supreme Court, as well as in other high courts of such a country. They are probably those that follow closely and study the jurisprudence of the US, who can assert the fundamental transcendence that has the right to be referring to in that context, constituting one of the best known and most known guarantees of personal freedom that appears in The Rights Declaration of the US Constitution, which was incorporated as a right through the fifth amendment ”32 In comparative law you can see approaches and more overcoming jurisprudential receptions. Punctually, the reference to the European Convention on Human Rights is unavoidable that does not expressly recognize the guarantee against forced self -incrimination, however the validity of it is interpreted implicit within the spirit of that norm. López Díaz, analyzes in details the entire praetorian construction of the guarantee in European law analyzing the causes “Saunders v. United Kingdom ”,“ Funke v. France ”,“ Blessed V. France ”, of the European Court of Human Rights that for reasons of brevity are only indicated33.

 

1 Tipke, Klaus Moral Tax and taxpayers, tr. Pedro Manuel Herrera Molina, Ed. Marcial Pons, 2002, Madrid, p. 93.

2 Nawiasky, Hans. Fundamental issues of tax law. Institute of Fiscal Studies, Madrid, 1982, ps. 52 and 53

3 Valdés Costa, Ramón. Tax Law Institutions. Depalma, Buenos Aires, 1982, p. 419. also cfr. HENSEL, ALBERT. Tax Law. Marcial Pons, Madrid, 2005, p. 154

4 Valdes Costa, Ramón. “The Tax Contentious in Latin America”, a report presented under the title “Fiscal Courts in Latin America” ​​to the 1st International Congress of Fiscal and Administrative Justify, Mexico, August 1981. Separate from the Uruguayan Journal of Fiscal Law, 1982/1, Montevideo, Uruguay, p. Four.

5 Linares Luque, Alejandro M. “The guiding principles of the tax procedure (three paradoxes and a challenge)”, in tax procedure, A. C. Altamirano coord., Abaco, 2003, Buenos Aires, p.

6 Tarufffo, Michele. The proof of the facts. Trotta, Madrid, 2002, p. 403.

7 Tarufffo, Michele. The proof of the facts. Trotta, Madrid, 2002, p. 406. The author points out that “it is easy to observe that the typical tests would be used as evidence, -in the extent to which they were relevant, although the law did not expressly deal with them: for example, although an order did not regulate the testimonial test would be Difficult to maintain that the tests by witnesses would not be used just because it was not planned. Moreover, this -it would be used even greater, because there would be no limitations that are normally introduced with the legal regulation of the testimonial evidence. The impossibility of demonstrating the “closure” of the legal catalog of the evidence is already a demonstration of the fact that it is not possible to deny a priori the admissibility of the atypical evidence.

8 Taruffo, Michele. The proof of the facts. Trotta, Madrid, 2002, p. 420.

9 Dworkin, R. The rights seriously, Planeta Agostini, Madrid, 1995, p. 86 visualizes discretion in the judicial level in the sense that the doctrine of judicial discretion – prepared by positivists – appears when the judge must decide by the exercise of this because the law does not contemplate the case. In this hypothesis he speaks of “strong” discretion; Instead it will be a “weak” discretion when the judge exercises his judgment by applying legal norms.

10 Alvarez González, José Julián. Another look at the “discretionary constitution”, in the rule of law and democracy. A debate about the Rule of Law, AAVV, Ediciones del Puerto, Buenos Aires, 2001, ps. 192 and S.S.

11 Alvarez González, José Julián. Op. Cit. p. 193 highlights the search for the original meaning of the constitutional text, although it is particularly defective. “Many powerful reasons have wielded, but I want to emphasize only one. The originalists impute the constituents greater certainty and consensus on their own beliefs and the meaning of their words than those that the current generation possesses. Thus, the originalists believe that the constituents were far superior to their successors, they overstimate the ability of the former. And even if it were true … that all limits together are more powerful than each of them separately. “

12 The principle of legality derives from article 17 of the National Constitution that guarantees property as inviolable and establishes that only Congress can impose the contributions expressed in article 4. The Supreme Court of Justice of the Nation sentenced that the Faculty attributed To the representatives of the people to create the necessary taxes for the existence of the State, it is the most essential of the nature and object of the Republican representative regime of government (failures, 182: 411) and that the collection of a tax without law that authorizes them , it is a dispossession that violates property right (failures, 184: 542).

13 Villar Palasi, J. L. and Villar Ezcurra, J. L. Principles of Administrative Law, Publications of the Complutense University, p. 31.

14 Villar Palasi, J. L. and Villar Ezcurra, J. L. Op. Cit. p. 32. The Spanish administrators mentioned warn of another essential element in administrative discretion, which is that of the different moments of discretion: “In every act there will be certain regulated elements (such as sale or end) so that discretion only You can refer to very specific aspects such as, fundamentally, when and the quid (understood as proportion and amount). Also the discretion can occur in the element of legality (an habeeatur) or of typicality (quommodo) giving rise to a series to a series of combinations according to the greater or lesser degree of discretion in each of the aforementioned aspects. ” Op. Cit. p. 33.

15 Moreno Fernández, Juan Ignacio, op.cit. . 55 and 56.

16 In Dworkinian code we would talk about pre -existing rights, according to which there is the possibility of discovering a single correct legal response based on the recognition of pre -existing individual rights. It is the judges who will determine those pre -existing rights.

17 García Novoa, César. Op.cit., P. 82 and 83.

18 Gordillo, Agustín A., Administrative Law Treaty, t. 3 “The administrative act”, Macchi 1979, p. IX-22.

19 Rivero, Jean and Waline, Jean, Droit Administratif, 15 ed., Dalloz, Paris, 1994, p. 216. For their part, Debbasch and Ricci, point out two possible manifestations of the vice of deviation of power: a) the use of prerogatives in the particular interest of the official; b) The use of prerogatives based on an interest other than that legally supports said prerogative. These authors also point out – such as another manifestation of the vice in question – to the “deviation of the procedure”, in the sense that in this case, the administration conceals the purpose pursued using a simpler and less random procedure than the one it should normally use. Cf. Debbasch, Charles and Ricci, Jean Claude, Contentieux Administratif, 6 ed., Dalloz, Paris, 1994, pag. 604/605. Think of the importance that this last manifestation of the vice in Cexitón can have in the sanctioning procedure that is substantiated before the General Tax Directorate.

20 Casás, José O. Constitutional rights and guarantees of the taxpayer. Ad hoc, Buenos Aires, 2002, p. 575 and S.S.

21 Dalberg-Acton, John Emerich Edward (Lord Acton) essays on the liberated and power. Editorial Union, Madrid, 1999, p. 94.

22 Barros Carvalho, Paulo de. Tax Law. Legal foundations of the incidence. Abaco, Buenos Aires, 2002, p. 110.

23 Gandra da Silva Martins, Iives. Theory gives impossible tribute. LTR, San Pablo, Brazil, 2nd edition, p. 55, affirms that “the strict legality, the indelgability of competence increases the closed, inelastic typology, containing the norm all the relevant and proper configuration of the intended imposition.”

24 Xavier, Alberto in AAVV, the principle of legality in Tax Law, Faculty of Law and Social Sciences, University of the Republic, Montevideo, 1986, p. 240. The Portuguese professor indicates that the principle of legality always has a rather restrictive content, with the view to protecting the subjective rights of the individuals from the arbitration and subjectivism of the body of application of the law -the judge or administration and the administration and, therefore, therefore , to prevent the application of arbitrary taxes. It is for all this that is chosen, in this branch of law, by a more restrictive formulation of the principle of legality, becoming an absolute law reserve, in the sense that the law, in a material sense, must contain not only the foundation of the administration’s conduct but also the decision criterion itself in the specific case.

25 Navarro Coêlho, Sacha Calmon. Commentary to Constitição of 1988. Tax System. Forensic Editor, 8th Edition, San Pablo, 1999, p. 186. The professor of Minas Gerais emphasizes the triple conformation of this principle, that is, a) the legality per se that means that the tax must be decided by the representatives of the people freely elected and not by the head of government, b) the Principle of “Previous” that expresses the idea that the Tax Law is known in advance, so that taxpayers, natural or legal persons know with certainty and security to what type of tax will be subject in the immediate future, being able to This way- organizing and planning their businesses and activities and c) Principle of irretroactivity of the Tax Law, so that the contributors have the certainty of their past acts based on the law.

26 Married Ollero, Gabriel. Op.cit, p. 155.

27 Moreno Fernández, Juan Ignacio, op.cit. P.21 Expresses: “We defend the juridification of administrative action as far as possible, by submitting it to the principle of legality and judicialization in the most absolute terms; that is, the total jurisdictional control of administrative decisions, understanding by such , the full submission of all types of discretionary administrative actions (even the so -called grace) to the control of the courts, and the possibility of these of verifying them to the point of replacing their decisions, if necessary (only valid guarantee for the administered) “.

28 Valdés Costa, Ramón “Protection of taxpayer rights at the international level, III Rioplatense Conference of Tax Law.

29 This is the “Rex v. University of Cambridge” case, (1723) 1 Str. 557, Eng. Rep.698,704 (Fortescue J), ​​where it was said: “Even God Himself Did Not Pass Sentence Upon Adam Before He was street Upon to Make His Defense. Adam (Says God) WHERE ART Thou? Hast Thou Not Eaten of The Tree, Whereof I Commanded Thee That Thou Shouldst Not Eat? “. On it and his implications in English administrative law see WADE, H.W.R. and Godfrey Philips, G., Constitutional and Administrative Law, London, 1981, p.599; Idem Wade, H.W.R., Administrative Law, 7th, Oxford, 1994, ps.494 and sigs. and Craig, P.P., Administrative Law, 2nd ed, London, 1989, ps. 199 and sigs. among others.

30 García de Enterría, Eduardo and Fernandez, Tomás R., Administrative Law Course, Ed. Civitas, Madrid, 1986, Vol. 1, p. 417y 418

31 Lisicki, Fernando. “The guarantee against forced self-criminality and the tax sanctioning law: a case of constitutional principles versus collection pragmatism” Radt- Argentine Revista of Tax Law- No. 2

32 Ribes Ribes, Aurora and Núñez Grañón, Mercedes “The doctrine of the European Court of Human Rights on the right not XXI days of Iladt, 2000, Bahía, Brazil

33 López Díaz, Antonio. “The right not to self -incorrect and not declare against itself in the sanctioning procedure in tax matters”, XIX Conference of the Latin American Institute of Tax Law, ILADT, Lisbon, Portugal, 1998. Cf. also García Novoa, César and López Díaz, Antonio, Antonio (Coords.): Tax Criminal Law, Marcial Pons, Madrid, 2000, p. 71 et se

Alejandro C. Altamirano