A Wise Court Decision

At the beginning of 2007, the Secretary of Domestic Trade and the Secretary of Mining enacted Resolutions No 288 and No 130 ('Resolutions SDT 288 and SM 130'), which instructed the Argentine Customs to collect export taxes from companies which had obtained their certificates of fiscal stability (stated in Law No 24,196 - 'Mining Investments Law') before taxes on mining exports were imposed (Resolution No 11/2002 of the Ministry of Economy and Infrastructure).

The Government's rationale to impose export taxes on exempt mining companies is the following: at the time tax stability certificates were granted, prices of minerals were far below the prices of 2007; therefore, tax stability was built on the value of minerals at the time mining projects were filed. Due to the increase of the value of minerals, which in some cases was three times the value at the moment the stability certificates were granted, the stability guarantee was no longer applicable.

Minera del Altiplano Ltd. had obtained several stability certificates, with different territorial and fiscal extents, from May 26, 1998 to May 30, 2000. Therefore, at the time taxes on mining exports were imposed (03/05/2002), Minera del Altiplano Ltd. had the certificates which granted that the tax burden upon the beneficiary cannot increase. However, Resolutions SDT 288 and SM 130 disregarded the Mining Investments Law and ordered the Argentine Customs to obtain from Minera del Altiplano Ltd. the payment of  taxes on mining exports. Minera del Altiplano Ltd. filed an 'amparo' -a summary proceeding- which purported to leave the Government's behavior without effect.

On August 13, 2009, the Federal Court of Appeals of the Province of Salta rendered a decision in the case "Minera del Altiplano S.A. v. Estado Nacional - PEN y Otros s/ Amparo (File No 345/08)” accepting the claim made by Minera del Altiplano S.A. This is the first precedent from a Court of Appeals which admits the claim on the merits of the case from a mining company under the protection given by the Mining Investments Law. Hence, it is a landmark case. .

Court considered that, since the plaintiff had obtained the stability certificates set in the Mining Investments Law, all the requirements contained in said Law had been complied with. Moreover, the Court declared that at the time taxes on mining exports were imposed (Resolution MEI Nº 11/2002), the Argentine Customs Bureau enacted General Instruction Nº 19/2002, which clearly established that previous regulations granting fiscal exemptions (such as  fiscal stability contained in the Mining Investments Law) for the payment of export taxes will continue to be in force. The Court also mentioned that the plaintiff should not have challenged the regulations which created taxes on mining exports, since said regulation was not applicable as the company was already exempt from new taxes. The Government itself recognized said exemption through General Instruction Nº 19/2002 of the Argentine Customs Bureau.

On the other hand, the Court rejected the Government's argument regarding the fact that the plaintiff should have filed its claim to the competent fiscal agency, since it was proved that Resolutions SDT 288 and SM 130 increased the plaintiff's tax burden. The Court also stated that, since the Government contradicted stoppel it should have proved that the tax burden had not increased as a result of said Resolutions. The Court concludes that the Government did not demonstrate such fact even in the file. The impossibility of proving such a fact is obvious since the tax burden was indeed increased by the Resolutions.