In the case “Baier, Omar Jacobo c. AFIP s/ Acción mere declarativa de derecho”, the Court I of the Federal Court of Bahía Blanca, admitted the claim that allowed the plaintiff to apply the inflation adjustment to determine the Income Tax, computing 100% of the adjustment without having to do it using the mechanism of deferrals in sixths of Law No. 27,541.
Background
By way of introduction, it is useful to mention that until December 2017 the inflation adjustment system provided for Income Tax was prohibited, a circumstance that caused serious questioning under the constitutional guarantee of non-confiscation, by taxing fictitious income and resulting in the application of an effective rate much higher than the theoretical rate legally provided for.
Law No. 27,430 -of late 2017- reintroduced the inflation adjustment the possibility of applying the inflation adjustment, although the conditions for its full application did not take long to arrive, given that by Law No. 27,468 -of November 2018- the floors for the inflation indexes to be verified as from 2018 were raised for the purposes of enabling the correction, and setting its deferred imputation by thirds, in successive tax periods.
Then, again at the end of 2019, Law No. 27,541 – Social Solidarity and Productive Reactivation Law – provided that the adjustment for inflation, for the first and second fiscal year starting as from January 1, 2019, one-sixth should be imputed in that fiscal period and the remaining five-sixths in equal parts in the five immediately following fiscal periods.
However, the deferral has resulted in a situation at least similar to that prior to its entry into force, since the inflation rates experienced in 2019 and 2020 caused cases in which effective tax rates were higher than those admitted by the Supreme Court of Justice of the Nation as constitutionally valid.
The decision of the Federal Court of Bahía Blanca
On April 7, 2022, the Federal Court of Bahía Blanca in the case “Baier, Omar Jacobo c. AFIP s/ Acción mere declarativa de derecho” confirmed the first instance decision and authorized the plaintiff to compute 100% of the inflation adjustment, without having to do so using the mechanism deferred in sixths imposed by Law No. 27,541.
In the specific case, the legal condition for the full imputation of the inflation adjustment without deferrals resulted in the application of an effective tax rate of 39.98%, higher than the rate legally established for Income Tax, and above the limits that the Supreme Court of Justice has established as constitutionally valid for this tax in similar cases.
Faced with this situation, the Federal Court of Justice ratified the application of the precedent “Candy S.A. c. AFIP y otros s/ Amparo” of the Supreme Court of Justice of the Nation and recognized that a case of confiscatory nature has arisen, since a substantial portion of the profits obtained in the fiscal year was absorbed.
This pronouncement is added to a series of precedents favorable to the full application of the inflation adjustment that Chamber I of the Federal Court of Bahía Blanca has been ruling since the beginning of 2022, such as the cases “Bio Bahía SA c/EN – AFIP s/acción mere declarativa de inconstitucionalidad” and “Baptista, Daniel Alberto c. AFIP (DGI) E. AFIP (DGI) E. Nacional s/ Acción mere declarativa de derecho”.
In short, the decision is encouraging since it protects the taxpayer’s right to property by imposing quantitative limits to the exercise of the taxing power by the State; ratifying that whenever it is demonstrated that the Income Tax becomes confiscatory by exceeding the reasonable taxation percentages, the inflation adjustment is applicable, computing 100% without deferrals.
