The Decree of Necessity and Urgency (DNU) 4/2025 which was published this Monday in the Official Gazette may go down in history as the one through which, For the first time, it legislated on tax matters without going through Congresssomething that is prohibited by the national Constitution.
This is the measure that extends the validity of the National Tourism Fund for 10 yearscreated by Law 25,997 and which was previously extended with the 2015 Budget Law for a decade.
It drew the attention of tax experts and analysts that the DNU does not refer to the 7% tax to air and sea tickets abroad, which serves as a source of financing for the fund. In principle, the tax cannot be extended by DNU.
Hence, a range of interpretations opened up. In principle, if it were not in force, ARCA should regulate that companies stop receiving payments.
The controversy with the tax that feeds the Trust Fund
The president of Fiscal Court of the Nation, Miguel Licht, whose interpretative weight in tax laws is important in itself, he pointed out through his social network account X (ex-Twitter) in an extensive post that the DNU did not extend the validity of the tax. “The validity of the tax was not extended. What was extended is the validity of the fund and the resources that comprise it,” he indicated.
Some Tax advocates in the market have assumed that, by not clarifying this, it opens the doors for companies to maintain the collection of the tax. In fact, according to related sources, a few days ago the Government informed the International Air Transport Association (IATA), the chamber that brings together airline companies, that the tribute continues.
From the perspective ofThe former head of Customs, Guillermo Michel, the tax was extended until December 2027 by law 27,702. Which The DNU did is to extend the specific allocation over time, and that is something that cannot be done by decree.
“In other words, although the tax had been extended previously until December 2027 by law 27,702 the DNU extends the validity of the Fund, That is to say, it extends the tax produced by the tax for a specific purpose. The question is, can a tax destination be extended for a DNU? The answer is NO,” he explains in a post on X.
The former official indicated that “the iSubsection 3 of article 75 of the CN states that: ‘it is up to Congress to: 3. Establish and modify specific allocations of shared resourcesfor a specified period, by special law approved by the absolute majority of all the members of each Chamber.’”
“It is not discussed whether the tax was extended by DNU or not, the discussion is different: whether a tax destination can be extended by DNU. The answer is clear, NO. In practice, The tax is still valid but not its specific destinationwith which the tax must be shared with the provinces by application of article 75, paragraph 2 of the CN”, concludes the former official.
But instead, the lawyer Diego Fraga considers that the law mentioned by Michel had not prolonged the life of the lien but rather its destiny. Thus, the DNU would be unconstitutional. Fraga states that “according to Michel, the law that extends the specific allocation is as if the tax were extended, and that is not the case.” “What is being extended is the destination of the tax, but if the tax is not there, you have no way to cover it unless you designate budget items,” he explained.
Instead, Sebastián Domínguez CEO of SDC Tax Advisorssuggests that although the wording of the law that created the tax is unclear, it can be concluded that the tax “does not expire” and therefore the DNU did not violate constitutional norms. It points out that “Law 27,702 extends the specific allocation until December 2027” but not the tax, which will remain in force until it is repealed by law.
Source: Ambito
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