The calculation of interest in cases of repetition of taxes

The Court (1) had the opportunity to rule on this issue in an action for repetition of the amounts that arose when applying the inflation adjustment mechanism of the income tax for the fiscal period 2002, under the terms of art. 81, 1st paragraph and art. 82 inc. b) of law 11683.

The Federal Court of Appeals of Mar del Plata (2) granted the declaratory action filed and then approved, in the first instance, the liquidation formulated by the plaintiff in compliance with said decision.

The topic under discussion focused on whether art. 179 of Law 11683 for the purposes of determining the moment from which interest must be computed in favor of the taxpayer.

In this sense, art. 179 of the ritual law provides that, in cases of repetition of taxes, the interest will begin to run against the Treasury, from the filing of the appeal or claim before the TFN as the case may be, or, if the prior administrative claim is necessary, from the date of this.

This rule is specific to tax matters as an exception to the general principle of the then art. 509 of the Civil Code, which established automatic default, without the need for the creditor to interpellate his debtor.

This peculiarity is based on the fact that the Treasury, faced with the possibility of having received an undue sum, has the opportunity to repair such unjust action, returning with diligence and promptness what was collected in excess..

It is noteworthy that the aforementioned article 179 of the ritual law is found in Title II of the same, which refers to the National Tax Court, without prejudice to which, its wording refers to the interest calculation module. which applies to all repetition actions, without distinguishing between those that are processed in court and those that are initiated before the TFN.

Repeat Alternatives

In turn, art. 81 of Law 11683, included in Title I, Chapter IX (General provisions) refers to the different alternatives available to the taxpayer to repeat the taxes and accessories paid in excess, either spontaneously or at the request of the AFIP. .

In the first case, a claim must be filed with it and, against the denial resolution, they can file an appeal for reconsideration before the AFIP or choose to appeal before the TFN or file a contentious lawsuit before the National Court of First Instance.

If the tax was paid upon request, that is, in compliance with a certain or presumptive determination of the fiscal body, the repetition will be declared through a lawsuit that is filed, at the taxpayer’s option, before the TFN or before the National Justice.

Opinion of the Attorney General

Thus, the Attorney General concluded that the application of art. 179 of law 11683 cannot be conditioned by the way the taxpayer chooses to claim the repetition of taxes paid in excesssince an interpretation that seeks to limit the scope of the provision would not only ignore the interpretative guideline that advises against distinguishing where the law does not distinguish (3), but would unduly restrict that method of calculating accessories to cases in which the TFN.

In turn, the Court issued its ruling based on the arguments of the Prosecutor’s Office.

Conclusion

In this way, it can be concluded that in the case of a repetition action, The interests in favor of the taxpayer are applied from the previous administrative claim, even in the cases of subsequent actions in the contentious jurisdiction.

Public accountant. Partner at Bertazza, Niciolini, Corti y Asoc.

(1) “Astilleros Naval Federico Contessi SA” CSJN of 9/17/2024, based on the opinion of the Fiscal Attorney of 8/13/2021.

(2) On 7/9/2019 Federal Court No. 2 of Mar del Plata intervened.

(3) Rulings 294: 74; 304: 226 and 333: 735.