On April 26, 2022, the Tax Court of the Nation issued a plenary decision, convened within the framework of the case “Petroquímica Comodoro Rivadavia S.A. c/DGA s/recurso de apelación”, and established that it has no power to declare the unconstitutionality of the law in the specific cases submitted to its decision by taxpayers, at the same time it endorsed the power of the Executive Power to establish the Export Duties, pursuant to the delegation made by Section 755 of the Customs Code.
The plenary was convened within the framework of the conflicting criteria that had been adopted by Chambers E and G of the Tax Court of the Nation, granting or rejecting the repetitions attempted in several cases.
In the plenary, the National Tax Court established as doctrine that:
The Tax Court cannot declare the unconstitutionality of a Law, in a specific case and in view of a claim made by an appellant.
The Executive Power may establish Export Duties, pursuant to the provisions of art. 755 of the Customs Code.
It is not appropriate to declare the invalidity of Decree 793/2018 in those cases in which the Tax Court must rule on resolutions issued by the General Directorate of Customs denying the repetition of export duties paid by the exporter by application of the provisions of Decree 793/2018 with respect to Export Destinations registered as from 4/9/2018, date on which the aforementioned Decree came into force, and until 4/12/2018, date of entry into force of Law 27.467.
It should be recalled that, in 2014, the Supreme Court of Justice of the Nation, in the case “Camaronera Patagónica” declared the unconstitutionality of the Export Duties that had been established by Resolution No. 11/02 and 150/02 of the Ministry of Economy, although with certain limitations as to their scope, based on the period in which the resolutions were applied until the respective ratification law (Law No. 25,645) was enacted.
In the cases that motivated the plenary, the potential unconstitutionality of Decree No. 793/18 was analyzed, a rule that reintroduced the Export Duties as of 4/9/2018, and different from the one previously analyzed by the Supreme Court in the “Camaronera Patagónica” case. Therefore, in the absence of jurisprudence of the highest court that allows making a direct application of the interpretative criterion against the validity of the decree, the Tax Court of the Nation was inhibited from declaring the direct unconstitutionality based on the impediment contained in art. 1164 of the Customs Code.
In conclusion, the doctrine established by the Tax Court of the Nation in the above mentioned plenary session will make it necessary to bring before the courts any type of claim on the validity of the Export Duties fixed by the Executive Power, based on the delegation contained in section 755 of the Customs Code.
This report should not be considered as legal or any other type of advice by Allende & Brea.
