3) In short, we are talking about legal certainty, value to which the Supreme Court of Justice of the Nation has recognized constitutional hierarchy.
4) The High Court has repeatedly urged to the Legislative Power, in terms of “that the principle of legality requires that the norms included within the juridicity have the greatest possible degree of precision and predictability so that they comply with the standard of clarity that It is enforceable for subjects to adjust their respective tax behaviors. This, as a way of protection of the constitutional guarantee of the property.
5) The fact that the passing of time undermined due to the loss of the value of the currency The amount of the breakdown that are transposed.
6) However, it is in this legal provision where the doubt about whether, according to the current text of the Tax Law, the breakdowns that are transferred are adjustable by inflation.
7) Although there are no solid foundations to deny the repowering of a clearly undermined figure, the rules involved in the Law of Gravamen indicate that such update does not proceed.
8) According to inveterate doctrine of the National Court, not only the first source of exegesis of the law is its letter, but, in that task, it should not be given a sense that struggles its provisions, but the one that reconciles them and lead to an integral harmonization of their precepts.
9) In accordance with the interpretation exposed, the opinion of the Treasury, externalized in its response given in the field of the AFIP-CÁMARAS Business dialogue- Act 21- 5/3/20, denying the update of the brokenness, does not look misguided. We add that the interpretation contributed in this regard by the National Tax Directorate is also consistent.
10) Nothing prevents the update of the brokenness to be used as a concurrent data that allows to evaluate whether in a specific case the tribute confiscatoriality is configured.
11) The update mechanics of the breakdown provided by art. 25, it will only become operational to the extent that the first paragraph of art. 93 release the temporary restriction (Article 39 of Law No. 24,073) that the legislator has printed. Obviously, this will demand the modification of the Tax Law.
Following the bill
Well, the fact that it is in process in the Chamber of Deputies, a bill prepared by the PE that replaces the eleventh paragraph of article 25; And it incorporates two paragraphs into article 93 of the tribute, gives us foot to add some other considerations that make the subject.
It is known that, the aforementioned project provides for the update of tax bakes in the Income Tax, today denied by the Tax Law. The latter, clearly ratified by the legislator of the so -called “Base Law”, when by admitting for the “rigi” such adjustment treatment, he clarified that, for these purposes, article 93 of the law of the aforementioned tribute will not apply . That is, for this particular case, Law No. 27,742 has removed the obstacle that would have prevented such an incentive from the vehicles of large investments contemplated in this last legal norm.
Despite the majority criticism that a good part of the doctrine has been carrying out the way in which the Treasury has interpreted the law, in regard to the update of the brokenness, we understand that it is a legislative policy decision, as Example was also the measure provided at the time by Law 24073, through which the brokenness that at the date of validity of the aforementioned law will not be compensable or would not have already been compensated with profits of following exercises, closed until the March 31, 1992, and that had their origin in closed fiscal exercises until March 31, 1991, were transformed into tax credits in accordance with the rules of the law and its regulations.
Admitted that judges cannot modify the laws, because they lack constitutional powers for this, if judging the goodness or convenience of the provisions of the legislator, it would be, The taxpayer does not have another path to discuss the rule in that jurisdictional route, in each case in which he understands that his application produces the affectation of rights protected by constitutional guarantees.
The project under analysis provides for the incorporation of the update for the breakdowns that are generated in the fiscal exercises that are initiated as of January 1, 2025, inclusive.
And it is allowed that the update also proceeds for those brokenness that would have been generated in the fiscal years initiated until December 31, 2024, inclusive, that are liable to computation in the fiscal exercises that begin as of January 1 of 2025, even such effects, the variation of the CPI to consider will be the operated between the month of closing of the immediate fiscal year before the one that begins from January 1, 2025 and the month of closing of the fiscal year of the fiscal year Liquid, until its total absorption or when five (5) years have passed since the one in which it has originated, which happens first.
In our opinion, what is indicated in this preceding paragraph seeks to avoid as much as possible the problem of retroactivity. It should not be seen that, for the sake of legal certainty, laws must dispose of the future. Let’s think if not, in the forcefulness of our Civil and Commercial Code of the Nation, when in its article 7 it expresses that “the laws have no retroactive effect, whether or not public order, except provision to the contrary. The retroactivity established by law cannot affect rights covered by constitutional guarantees. ”
Final reflections
Therefore, we do not repeat the text of the project when it limits the computation of the update to the previous fiscal year.
That is, extending back the beginning of the update would cause incurring retroactivity, since, due to the jurisprudential concept of “legal consumption”, the breakdowns that are not adjusted for their computation in the fiscal exercises that begin from the 1st January 2025, should not be achieved (to sanction) by the new law, but by the previous one (the still in force), which prohibits the update.
The project contemplates that the aforementioned breakdown update will be applicable for those taxpayers who have submitted and comply with the obligation of the aforementioned tax – according to the current regulations – for the non -prescribed periods initiated until December 31, 2024, inclusive.
Otherwise, the regularization of the obligation is admitted for the non -prescribed periods, paying the amount of that tax, in a timely manner not admitted – that interests, fines and other sanctions are conded, as well as extinguished the tax criminal action, to correspond- in The form and conditions that, for this purpose, determines the Ministry of Economy and in up to thirty -six (36) monthly, equal and consecutive installments.
We think that this forecast should enclose a very deep parliamentary study, for the antecedent you install.
Public Accountant Tax
Source: Ambito
