National Tax Court's Plenary Ruling Sheds New Light on Export Duties

The Tax Court has been recently required to delimit certain questions that had remained unresolved, such as the following: (i) Is improper delegation allowed in customs matters as opposed to tax matters? (ii) Is Decree PEN 793/2018 a case of delegation or the mere exercise of regulatory powers under art. 99 inc. 2 of the National Constitution? and (iii) Could a case of improper delegation be configured in relation to the aliquot, being this an essential element of the tax?

The Tax Court itself has not been able to maintain a uniform doctrine with respect to such questions, thus generating opposing and inconclusive positions.

With the call to Plenary on April 26, the Tax Court -by a majority- established the following doctrine in relation to the open issues.

1. The Tax Court of the Nation cannot declare the unconstitutionality of a Law, in a specific case and in the face of a claim made by an appellant.
2. The Executive Power may establish export duties, pursuant to the provisions of Section 755 of the Customs Code.
3. It is not appropriate to declare the invalidity of Decree PEN 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 of 04/09/2018, when the aforementioned Decree came into force, and until 04/12/2018, when Law 27,467 became effective.

Despite the differences of the case, it is necessary to highlight that this pronouncement is contrary to the foundations already consolidated by the Federal Supreme Court of Justice in the ruling Camaronera Patagónica, where the undoubted tax nature of export duties was remarked, and consequently the conclusion that they cannot be created by the Executive Power per the principle of legality or reserve of law under Article 76 of the National Constitution was affirmed. Likewise, in that opportunity it was established that art. 755 of the Customs Code is not a valid delegation, since it does not establish clear and precise guidelines for the exercise of the taxing power by the Executive Power, time limits to the exercise of such power and it does not refer to minimum and maximum rates -tax- to be applied.

We may conclude that the fact that the Tax Court has unified a criterion does not put an end to all the issues raised, but on the contrary, it generates greater doubts to the taxpayer as the debate continues at subsequent instances, within the legal orbit, where although a criterion had already been unified, these questions will be raised again, generating a situation of uncertainty until the Court expresses itself again -if applicable- regarding the issues at hand.