The recourse to Justice against the AFIP requires the advance payment of the amount in dispute. Entrepreneurs can meet this requirement through a surety insurancesaid the Supreme Court of Justice. But some judges of the Chamber of Social Security do not meet that criteria in cases about employer contributionsand thus affect the already unstable legal certainty.
Labor taxes are one of the main problems for productive investment in Argentina, due to the high amount of employer contributions, but above all due to the high litigation encouraged by judges who were previously union lawyers.
Employer contributions, without legal certainty
And not everything ends there, also when there are differences of interpretation with the AFIP on the amount that must be paid as employer contributions, very aggravated problems are added, since for go to court against those claims advance payment is required of very large sums of money, explained Lucas Gutiérrez, of the Lisicki, Litvin & Asoc.
The Supreme Court attempted to provide a partial solution to this issue, accepting that employers who litigate with the AFIP comply with the obligation to “solve et repete”, pay before going to trial, with a surety insurancehe indicated.
Some chambers of the Chamber require prior payment of everything required by AFIP
However, not all rooms in the Chamber of Social Security accept the criterion of the Court, since some continue to demand the full payment of what the AFIP claims or reject in limine, without even opening the file, the taxpayer’s request for justice, he said.
This is aggravated by the fact that several vacancies in the Chamber still need to be completed, so different judges take turns to integrate the incomplete chambers. Thus, the taxpayer never knows which clerk will fail in his case, which aggravates legal uncertainty, he said.
Cases of conflict with AFIP due to employer contributions
Payroll taxation generates high litigation, with important economic consequences, warned Gutiérrez, and listed the following situations that lead to conflicts with AFIP:
- Discrepancy of AFIP with the legal framework given by the companies in the contracting services to third parties.
The body intends to qualify as dependency relationship of the client company, the work of employees of the company to which those tasks were outsourced.
- The AFIP systematically ignores the preferential tax regime applicable to small and medium businesses from one capricious interpretation of the current regulations to frame them according to the limits set at any time by the SME Secretariat.
But this is only part of the problem, the other is linked to the defense of taxpayers’ rights, warned Gutiérrez.
The AFIP intends to put employees of outsourced jobs in a dependency relationship
The surety insurance, in question
When the AFIP makes some adjustment about the affidavits of social Security filed by taxpayers (F 931) and intends to apply sanctions for the alleged breach, the procedure established by law must be followed, Gutiérrez said.
These rules establish that the taxpayer has right to challenge or express disagreement with respect to the established debt and the sanction applied in a within 15 business dayshe added.
The resolution that resolves the disagreement, in case of staying AFIP’s claim in whole or in part, may be appealed by the taxpayerby following waysproposed:
- resource of appeal to the House of Social Security.
- Appeal for review before the same AFIP, whose final resolution will exhaust the Administrative routeand will again expedite the option of going before the Camera.
However, it is a requirement to promote the appeal before the Federal Chamber, prior payment of the obligations determined by the AFIP, considered Gutiérrez.
Conflict between Social Security judges and the Court
The Supreme Court of Justice of the Nation, established long ago that the solve and repeat only has a purpose warranty and that its demand is not related to the presumption of legitimacy of the administrative action, for which it admitted that the taxpayer can offer in substitution of the previous payment, a surety insurancehe remarked.
The Supreme Court endorsed complying with the prior payment through surety insurance
However, this jurisprudential doctrine, even when accepted by the House majorityit is not in a uniform way because within it there are isolated expressions that are issued in the opposite directionhe indicated.
Depending on the composition of the chambers that intervene in the decision of the case and taking into account that the vacancies cause their composition to vary, for the authorization of the judicial instance it could be enough to provide a surety bond, but in other cases, the lack of payment could motivate the rejection in limine of the appeal, he stressed.
It is clear that a sentence expressed in the latter way will incur the cause of arbitrariness sentence, because it is important to dispense with the jurisprudence of the Court, depriving the taxpayer of his right to defense, which would merit the origin of an extraordinary appeal to that High Court, said Gutiérrez.
But the expert put the accent on the state of uncertainty and legal insecurity that generates such type of judicial decisions in the taxpayer, because his patrimony and the possibility of fully and completely exercising his right of defense are at stake.