In quarantine, local Justice puts a brake on bank withholdings

Amidst the restraint on judicial activity due to compulsory isolation, a court ruling that sets an important precedent in the country caught the attention of taxpayers.

It is because the resolution of the Justice puts a brake to the pretension of the municipalities to realize banking retentions on account of the municipal rates.

This is a ruling of the last May 21, corresponding to the Third Nomination Administrative Litigation Chamber, one of the first outstanding pronouncements of this body that was formed last year, composed of María Martha Angeloz and Cecilia María de Guernica.

The issue became nationally relevant, since it sets a precedent in the retention, collection and collection regimes before the advance of the municipal treasuries, which has increased in recent years.

It is a cause that Banco Credicoop initiated against the Municipality of Córdoba to question the municipality’s decision to include the bank as a collecting agent of the Contribution on Commercial, Industrial and Services Activity (known as Commerce and Industry) on its suppliers, from 2016.

Judicial opinion

The ruling, which will now go to the Superior Court of Justice (TSJ), considers the retention regime to be illegitimate when it comes to a fee. To affirm that it is the latter (and not a tax), reference is made to the ruling by Raffo Laboratories, known for establishing jurisprudence against the “bag tax” (to taxpayers of strange jurisdiction).

“The judges point to the banks as withholding agents whom the city of Córdoba gave a public charge for the simple fact of having a monetary relationship with the taxpayers, but without being within the taxable event on which the tax is applied” , explains Julieta Lucchessi, a tax lawyer from the Villegas Vázquez study, in charge of handling the case.

“The Chamber conducts an entire analysis indicating that withholding agents should participate in legal relationships because, eventually, they may be jointly and severally liable to the treasury,” he adds.

It should be clarified that bank collection regimes are widely used by the three levels of government to collect taxes in advance.

“We will have to wait for the opinion of the TSJ, but this decision of the House is very important because it slows down the progress of the municipalities and this way of collecting. The whole country is looking at it,” he remarks.

This ruling is considered because it is the first time that the Justice decides on the retention agents. There are many other cases and decisions about taxpayers who ask that they not be withheld so as not to accumulate favorable balances, but it is the first that enables the raising of an agent.

Lucchessi understands that it could also be applied to the case of taxpayers who want to avoid bank withholdings with this argument.

Fundamentals

Lucchessi explains that the magistrates point out that the municipal resolutions violate the principle of reasonableness. At this point, he clarifies that the ruling differentiates withholdings in the case of other taxes (provincial or national) because, as regards the rates, these are applied to a consideration from the State (this is what the Raffo case established).

In this case, “the taxable event is not made up solely of the activity carried out by the taxpayer, but is mainly made up of a matter totally unrelated to him, related to the service that the municipality must provide due to commercial, industrial activity and of services that it performs in its territorial scope, “says the text.

The taxpayer points out that in this case, in addition to receiving income through your bank account, the taxable event is related to the services that the State has to provide to the taxpayer, which is totally unrelated to the bank’s activity.

“Ultimately, considering its nature as a municipal ‘rate’, the aforementioned contribution is incompatible with the withholding regime instituted by the municipality for collection,” the ruling remarks.

And he points out that “the arbitrary choice that the treasury has made in appointing banks as withholding agents also affects the principle of equality in taxation” and that “it has no basis since (the banks) are subjects completely unrelated to the legal relationship tax “, between the Municipality and the taxpayers.