Innovative judicial decision which considers the Federal Tax Court to be empowered to issue precautionary measures

On March 4, 2008, the Court of Appeals decided in re “Nidera S.A. v. Federal State - Customs Service about precautionary measure” declaring that the TFN must be the first instance in deciding a petition requesting a precautionary measure.

The Court of Appeals argued that the Federal Tax Court (Tribunal Fiscal de la Nación – “TFN”) is empowered to grant or deny precautionary measures because the legislation governing the relevant proceedings before TFN states that the Federal Procedural Code on Commercial and Civil Matters should apply as a supplementary regulation.

In addition, the Court of Appeals held that if the public administration is obliged to suspend the effects of an administrative act detrimental for the taxpayer —presumably void according to Section 12 of Law No 19,549—, the TFN should also be empowered to issue a decision entailing the same effects.

The Customs Service (Dirección General de Aduanas - “DGA”) had ordered the taxpayer to return certain export subsidies. The taxpayer challenged this act by means of an administrative petition (appeal).

As a result, the taxpayer had requested a first instance judge on Administrative Matters a precautionary measure that forced the DGA to refrain from carrying out acts enforcing the alleged credit until the taxpayer’s appeal has been decided. Those enforcing acts may consist in the suspension of the possibility of releasing goods, the attachment of goods or suspending the taxpayer from the registry of importers and exporters.

The judgment which denied the preliminary measure was appealed; the Court of con Appeals held that the TFN should be the first instance to decide. In a subsequent stage, the Court may well revise —by means of a formal appeal— the TFN’s decision, either granting or denying the preliminary measure.