The Supreme Court of Justice urged the Tabacalera Sarandi firm to comply with the payment of the cigarette tax, which it had managed to avoid for years with judicial presentations. Precisely, The highest court accepted a proposal from the National State through the AFIP to annul the execution of a ruling that favored the company. Meanwhile, the highest court awaits the ruling of the Attorney General’s Office to rule on the unconstitutionality of the tobacco tax claimed by that firm.
Tabacalera Sarandí markets a series of brands, such as Red Point, West, Master and Kiel, has been claiming in court for years: questions a reform to law 24,674 on internal taxes that was signed during the government of Mauricio Macri, where a 70 percent increase in these taxes was established. The company alleged that the measure meant an increase in the public price of its products that put it at a disadvantage compared to international companies.
And in practicethe signature of Pablo Otero, baptized by Javier Milei as “the lord of tobacco”, She benefited from a series of precautionary measures that allowed her not to pay the tax in question, which were revoked by the Court in 2021 and two weeks ago.
In 2021, judges Juan Carlos Maqueda, Horacio Rosatti and Ricardo Lorenzetti held that the company did not demonstrate specific harm and that a rule of the Legislative Branch cannot be suspended with a precautionary measure. And two weeks ago they again annulled a series of precautionary measures issued in favor of Tabacalera Sarandí SA. But he still didn’t start paying.
Because? Because a first instance judge, Enrique Lavié Pico, and Chamber IV of the National Chamber of Federal Administrative Litigation, with the signature of judges Jorge Morán and Marcelo Duffy, resolved to declare the unconstitutionality of arts. 103, 104 and 106 of Law 27,430 that imposed the payment of minimum amounts for different types of products related to tobacco. Likewise, they established that the application provided in the General Resolution of AFIP 5113/2021 must adapt to what was resolved in order to be able to settle the aforementioned tax with the actual sales amount.
By obtaining two sentences in the same sense, according to the Procedural Code, the measure ordered could begin to be executed, even if there was an extraordinary appeal pending before the Supreme Court. That was what was now analyzed.
The country’s highest court decided to suspend the execution of the sentence: without delving into the substance of the issue – which is also being studied by the Court – the appeal could entail the analysis of federal issues, stated judges Maqueda and Rosatti in a joint vote, and Lorenzetti, in a concurrent vote.
The judges held that “the suspension of the incident of execution of the sentence is appropriate if the arguments raised in the extraordinary appeal and maintained in the complaint could, prima facie, and without implying a statement on the substance of the issue debated, involve issues susceptible to examination.” in the instance of article 14 of law 48″ (extraordinary appeal). And they stressed that this applies in this case because the Administrative Litigation Chamber with its decision, “in practice, has inhibited fiscal powers for an exceptionally high amount and altered the effect of the appeal filed by the appellant against the substantive ruling, requiring for this only the sworn bond of the appealed party.”
In his vote, Lorenzetti explained the exceptional nature of the situation, underlined the extreme institutional gravity and made a strong criticism of the decision to allow the execution with a minimum guarantee. “The fact is that, if the sentence is revoked, Tabacalera Sarandí will not only have to pay from now on, but could be executed for everything it has not paid for years, which is a multi-million dollar figure,” it was explained. .
For this reason, the highest court decreed the suspension of the execution of the sentence ordered by the Contentious Chamber. In this way, there is no longer any preventive, precautionary or early execution measure pending before the Court, that prevents the treasury from determining and collecting the tax against Tabacalera Sarandí SA
Meanwhile, regarding the constitutionality or not of the regulations that regulate the internal tax on tobacco, in the agreement last Tuesday, the Court decided to confer a hearing on the Attorney General’s Office to issue its opinion. From there, the highest court will begin to analyze the substance of the underlying issue.
