Justice has ruled again in favor of a taxpayer who has not paid the new wealth tax

Federal justice has again ruled in favor of a taxpayer who has not paid the new wealth tax. This is a precautionary measure by Federal Tribunal No. 4 of Mar del Plata, in charge of Alfredo López, which ordered AFIP not to advance on this person until there is a firm resolution.

The measurement determines that AFIP must refrain, “until this action is definitively resolved, from launching tax audits, or from dictating any other act or resolution by which it is intended to enforce compliance with obligations formal or material, either presentation of declarations under oath, payment of the tax, determination of the charge, compliance with the information regime and / or sanction by fines and / or any other type of administrative measures which configure abusive sanctions, related to the tax created by law 27605“, depending on the failure you accessed Infobae.

“The plausibility of the law, that is to say the right alleged for the sole purpose of the precautionary measure requested, is deemed prima facie accredited – without this in any way prejudging the substance of the case – because the complainant certifies by an accounting certificate that if she has to pay the “solidarity contribution” established by law 27605, one hundred percent of her profitability for the period 2020 is consumed and she must also use the capital “, said the federal judge.

“He ratifies his position because If we analyze the property tax levied on the same taxable capacity, the effective rate (solidarity contribution) on income for the year 2020 is higher», He clarified.

In this sense, he specified that the accounting certificate presented by the taxpayer “Surge que el impuesto creado por la Ley 27,605, asciende a la suma of $ 13,996,728.25 y la renta obtenida por el ejercicio 2020 es $ 10,259,137.01, configurando una tasa efectiva sobre el rendimiento obtenido del 136.43 percent “.

“In addition, you must pay personal property tax in the amount of $ 6,851,253.33, or an effective rate of 66.78% of income for the year. Therefore, the “solidarity and extraordinary contribution” causes a manifest absorption of income and assets already taxed by Personal Property because more than one hundred percent of income is consumed as it emerges from the attached appendices, “said the magistrate.

In addition, he considered “With particular attention to the danger represented by the delay which would imply taking advantage of the complaint late, in this case, refusing a precaution would lead to irreparable damage,” which would become a difficult subsequent solution “since the AFIP” is empowered to initiate a tax audit with the intention of automatically determining the taxable matter, the prohibition of precautionary measures, the request for tribute and possible repressive sanctions, and without To the detriment of the fact that the determination made by the Treasury is subject to appeal before the Tax Court, once the conviction has been pronounced by the said body, the latter can issue a debt statement and even apply criminal sanctions.

In this way, although the judge has not yet ruled on the merits, it implies that, as argued by many tax experts, this tax may be confiscatory and, moreover, it partly overlaps with personal property.

In this regard, the lawyer expert in tax matters Diego Fraga I consider that “Although we still do not have a file from the Federal Chamber of Mar del Plata, it is very important for taxpayers who litigate in this jurisdiction.”

“There is still a long way to go before these cases are defined and every day we will have news of antecedents in different directions,” said Fraga. Infobae.

“In recent weeks, we have witnessed a very strong government campaign aimed at psychologically crushing those who have decided to defend their rights in the face of this tax adventure that does not exist in the world”, he said.

In this regard, “fake news or with ambiguous content has been disseminated, such that AFIP would trigger tax executions or demand precautionary measures to attack the assets of those who litigate, when for this there should be a enforceable debt. “

“This is clearly not the case with those who question the tax administratively and judicially. For him, The existence of precautionary measures against AFIP shows that there are many judges in the country wishing to defend property rights against abuses of administrative power and that is good, because it gives credibility to justice, ”concluded the lawyer.

For its part Cesar Litvin He considered that “the precautionary measure granted by the N4 court of Mar del Plata is of the utmost importance; in the first place, because it considers that the plausibility of the law in the taxpayer’s request is proven “.

On the other hand “Validates the evident confiscation criterion when the tax absorbs a substantial part of the income, in this case, the tax represented 136.43% of the 2020 income from encumbered assets, with an exponential effect if the analysis of Personal Assets is incorporated and a strong impact on the Law on Property guaranteed by the National Constitution ”.

“Our legislators must understand that no economic emergency justifies departing from the constitutional mandate. Beyond the need for collection to deal with the pandemic, it is necessary to assess the breaches of legal certainty, an indisputable requirement for the generation of private investments and real jobs, ”concluded Litvin.

On your side, Ivan Sasovsky indicates that “In times of crisis, when there are no profits, property taxes seem to be the panacea for leaders who need new resources. The problem is that the limit is set by the Constitution itself, it is not the judges ”.

“There are countless rulings on forfeiture taxes, but not so much on taxes with these special features incorporated into the law to differentiate it from the tax on personal property; But you cannot cover the sun with your hand, it is a tax which falls on the same subject, the same basis, and the same conditions, except that the date is cut by thirteen days difference.at. This decision comes to say that it is more or less the same thing and that the effects of the two taxes must be measured together ”, he declared.

The existence of precautionary measures against AFIP shows that there are many judges in the country wishing to defend property rights against abuses of administrative power (Diego Fraga)

Other judges have already granted similar conservatory measures, in various jurisdictions, although some have also favored the tax body. On the one hand, Justice accepted the request of the first Argentinian living abroad not to pay this new wealth tax.

The precautionary measure not to innovate was granted by the federal judge Leopoldo Rago Gallo of San Juan in favor of the taxpayer Darius Rosenzvit and your deputy manager Vicente Arusa, considering that its collection violated the non-retroactivity of a law.

In the judgment, the magistrate ordered the Federal Administration of Public Revenue (AFIP) to “refrain from applying the provisions of Law 27,605, to initiate, to execute, to determine and / or to claim administratively or legally the absence of income from wealth tax, apply fines, embargoes or any other indirect measure, until the final judgment in this case is rendered ”. On the other hand, he decreed the precaution on real bail of one million pesos.

The main argument was that the plaintiff argues that before the entry into force of Law No. 27,605 (on 12/18/2020) he had a permanent residence in Uruguay and that, for this reason, he should not not be taxed as required by law. .

On the other hand, the federal justice of Cordoba granted a similar measure to a taxpayer who had to pay the new wealth tax, considering that to do so he had to liquidate “part of his heritage” and would cause him “serious damage”.

The Federal Judge of Villa María, Roque Rebak, considered that the complainant, Aurora Blazquez, “Has accompanied the accounting documentation which indicates that to be able to assume this new tax obligation imposed, it must liquidate and sell part of its assets.” For this reason, “ prima facie, what is stated in paragraph a) of the aforementioned law would be proved, with regard to the serious damages of a subsequent reparation impossible that the execution of the material behavior provided for in the rule contested in the present case would have “.

The government said taxpayers declared $ 223 billion for this new wealth tax, which, as the economist explains Fernando Marull, six billion pesos entered in March, 103 billion in April and the “rest will enter from May in five installments”, due to the payment plan provided by AFIP.

President Alberto Fernandez He thanked those who paid this new tax and regretted that some had resorted to legal remedies.

Meanwhile, AFIP has launched face-to-face and electronic inspections of this second group, in addition to warning that it will launch a series of embargoes and executions, although experts have clarified that this type procedure can so far only reach those who presented the affidavit but did not pay the fee, since the rest is covered by the rules of tax procedure.

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