Power Tax Limitations: a) Constitutional Principles of Taxation: Legality, Equality, Government, not confiscatory, Proportionality. b) Limitations of Political Order: Double Taxation.
Constitutional Supremacy
tax law institutions as well as other institutes of law in general, should be interpreted in the light of our Constitution, since fiscal policita is a component of the economic and social policita should be directed to pursue the constitutional objectives.
tax law institutions as well as other institutes of law in general, should be interpreted in the light of our Constitution, since fiscal policita is a component of the economic and social policita should be directed to pursue the constitutional objectives.
The Section 31 of our highest law states: "This Constitution, the laws of the nation in pursuance thereof, enacted by Congress and treaties with foreign powers are supreme law of the Nation .. ., "ie, the same constitution establishes a priority of rules to be observed at all costs to achieve the maintenance of the rule of law. Notwithstanding the above, this order of precedence also involves securing the entire legal system of constitutional principles according to Article 28 of the standard under consideration .-
(ARTICLE 28 .- The principles, guarantees and rights recognized in the preceding sections shall not be altered by laws that regulate their exercise.)
Top Legal Reserve
The Section 4 of our Constitution states: "The Federal Government provides for the expenditures of the nation with the National Treasury made product import and export rights of the the sale or lease of lands owned national postal income, other taxes equitably and proportionally levied on the population the General Congress, and the borrowing and lending operations ordered by the same Congress of national emergencies or for enterprises of national interest. "Concurring with that article 17 of the same plexus policy states that" only Congress makes the contributions the item indicated above. "
The adoption of this principle from the modern constitutional law, as ours do so, due to two possible causes:
I. - The first of these, would be given by the late S. contractualism XVII and XVIII and the republican system of government, because in this social contract operator of the state, have made sacrifices for their support and only the people through their representatives, namely the legislature, is one who retains the power to impose such a sacrifice
mind .- II .- On the other hand the English Revolution of 1640 born, among other reasons, exacerbated by taxes collected by the monarch the merchant middle class, limiting the power of the sovereign and legislation prohibiting taxation, granting this right only to parliament
.- Therefore the power to legislate in matters of taxation is reserved to the Congress of the Nation (1), verifying Article 75 patent Inc. 1 and 2 sub-examine regulatory body, for then any rule that imposes no taxes and a formal review, brings the insane statement unconstitutional.
However, there are tax rules eminently material, since Article 99 (2) of our Constitution gives the Executive the power to regulate the laws of the Nation, so that the law of the simplified regime for small taxpayers is regulated through Decree No. 806/2004 of PEN, The Law of Income Tax Issue has the regulatory decree 1344/1998, as well as we could have hundreds AFIP resolutions that legislate in relation to each these taxes, but these standards must take care not to disturb the spirit of the law, since the article in Inc. 2 comments so provides.
In the light of this reasoning Inc. 3 of the same article prohibits the administrative power to issue decrees of necessity and urgency in tax matters, such as Article 76 forbids the Congress legislative delegation in the Executive Branch (3), except administrative matters, ie that the parliament can only entrust PEN regulations necessary for the proper collection, with the law (provided in the formal sense) should determine who are invariably achieved by the tribute which life events have be taxed, the territory concerned and the quantum of charge, in this order of things, exemptions or differential benefits should be designated by an act of National Congress .-
Court (1) Art. 3Ø of dec. 976/2001 of the Executive Branch, which provides a tax on the transfer for consideration or not or importation of oil or other fuel to replace him in the future, is unconstitutional because it violates the principle of legal tax reserves established in the arts. 4th, 17, 52 and 75, inc. 2 of the Constitution, since that set an excise tax consumption must have been created by a rule of law with the nature of formal law. 976-2001 DEC Art. 3 / / Article 4 / / Article 17 / / CON Section 52 / / CON Inc. 2 CFCA Article 75 IV, CAPITAL FEDERAL, 05/06/2003 FACE: Ombudsman's Office c / National Executive PUBLICATIONS: LL 2003 F, 89-106207 / / JA 2003 III, 474
the decree is unconstitutional 360/95 General Inspectorate of Justice because, as the rate that emerges from such standard is fiscal, the principles are applicable in this matter, among them the reserve of the law, under which only corresponds to the legislature to impose taxes, levies and duties. 360-1995 DEC CFCA III, CAPITAL FEDERAL, 15/07/1997 FACE: Sacom SCA c / General Inspectorate of Justice Publications: 1998 D LL, 205-97501
(2) The benefits established by Decree 285/1999 behave exercise of the powers of nature tax, so it is incurably void for conflict with the principle of legality in art.99 inc.3 tax and CN. Ratification of Decree Law 285/1999 by 25,237 no retroactive effect under the original decree unconstitutional incurable Vote .- Drs. Belluscio and Bossert: Corresponds to the judiciary the constitutional control over the conditions under which the Executive issues decrees of necessity and urgency, as well as support for constitutional control as to the substance of the measures taken, where this is discussed in a particular case. Dr. Boggiano vote: Only in situations of serious disorder that threaten the existence, security or public order or economic that must be summoned without delay the Executive Branch can make up their own rules which the powers of Congress, provided that it is impossible to respond to exceptional circumstances. DEC 285-1999 / / WITH Article 99 Inc. 3 / / ACT 25237 / / ACT Article 20 CS 24156, CAPITAL FEDERAL, 20/09/2002 ARATULA: Zofracor SA c / National Government Publications: JA 2003 II, 27, Schvartzman and commented on by Sebastian Alejandro Toranzo / / LL 2003 C,-S 41-105311., reviewed by John Mirko / / LL 2003 C, 315-105389 .-
(3) Since only the Legislature by a formal law may impose taxes, fees and contributions, it must contain the essential norm the taxable event, among which is the determination of the base, it can be concluded that art. 59 of 25,237 law and the administrative decision of the General Headquarters of Ministers, are unconstitutional, while the annual rate set to be received by the General Inspectorate of Justice, whose character has been recognized tax. Should note that although the constitutional reform after Congress may, under certain circumstances, resort to legislative delegation, it can not understand the essence of the power of taxation, since the principle of reservation enshrined in art. NC 17 has remained intact, so it would not be admissible intelligence that puts you in conflict. LAW Article 25237 59 / / CON Section 43 CFCA III, CAPITAL FEDERAL, 13/02/2001 FACE: SAM & Sons Langenau CIFI and AG c / EN-M ° Justice and Human Rights - General Inspectorate of Justice, decision 55/00 s / Amparo 16,986 law PUBLICATIONS: 01/07/1920 ED, ADM, 21-146
Principle of Equality
Top Legal Reserve
The Section 4 of our Constitution states: "The Federal Government provides for the expenditures of the nation with the National Treasury made product import and export rights of the the sale or lease of lands owned national postal income, other taxes equitably and proportionally levied on the population the General Congress, and the borrowing and lending operations ordered by the same Congress of national emergencies or for enterprises of national interest. "Concurring with that article 17 of the same plexus policy states that" only Congress makes the contributions the item indicated above. "
The adoption of this principle from the modern constitutional law, as ours do so, due to two possible causes:
I. - The first of these, would be given by the late S. contractualism XVII and XVIII and the republican system of government, because in this social contract operator of the state, have made sacrifices for their support and only the people through their representatives, namely the legislature, is one who retains the power to impose such a sacrifice
mind .- II .- On the other hand the English Revolution of 1640 born, among other reasons, exacerbated by taxes collected by the monarch the merchant middle class, limiting the power of the sovereign and legislation prohibiting taxation, granting this right only to parliament
.- Therefore the power to legislate in matters of taxation is reserved to the Congress of the Nation (1), verifying Article 75 patent Inc. 1 and 2 sub-examine regulatory body, for then any rule that imposes no taxes and a formal review, brings the insane statement unconstitutional.
However, there are tax rules eminently material, since Article 99 (2) of our Constitution gives the Executive the power to regulate the laws of the Nation, so that the law of the simplified regime for small taxpayers is regulated through Decree No. 806/2004 of PEN, The Law of Income Tax Issue has the regulatory decree 1344/1998, as well as we could have hundreds AFIP resolutions that legislate in relation to each these taxes, but these standards must take care not to disturb the spirit of the law, since the article in Inc. 2 comments so provides.
In the light of this reasoning Inc. 3 of the same article prohibits the administrative power to issue decrees of necessity and urgency in tax matters, such as Article 76 forbids the Congress legislative delegation in the Executive Branch (3), except administrative matters, ie that the parliament can only entrust PEN regulations necessary for the proper collection, with the law (provided in the formal sense) should determine who are invariably achieved by the tribute which life events have be taxed, the territory concerned and the quantum of charge, in this order of things, exemptions or differential benefits should be designated by an act of National Congress .-
Court (1) Art. 3Ø of dec. 976/2001 of the Executive Branch, which provides a tax on the transfer for consideration or not or importation of oil or other fuel to replace him in the future, is unconstitutional because it violates the principle of legal tax reserves established in the arts. 4th, 17, 52 and 75, inc. 2 of the Constitution, since that set an excise tax consumption must have been created by a rule of law with the nature of formal law. 976-2001 DEC Art. 3 / / Article 4 / / Article 17 / / CON Section 52 / / CON Inc. 2 CFCA Article 75 IV, CAPITAL FEDERAL, 05/06/2003 FACE: Ombudsman's Office c / National Executive PUBLICATIONS: LL 2003 F, 89-106207 / / JA 2003 III, 474
the decree is unconstitutional 360/95 General Inspectorate of Justice because, as the rate that emerges from such standard is fiscal, the principles are applicable in this matter, among them the reserve of the law, under which only corresponds to the legislature to impose taxes, levies and duties. 360-1995 DEC CFCA III, CAPITAL FEDERAL, 15/07/1997 FACE: Sacom SCA c / General Inspectorate of Justice Publications: 1998 D LL, 205-97501
(2) The benefits established by Decree 285/1999 behave exercise of the powers of nature tax, so it is incurably void for conflict with the principle of legality in art.99 inc.3 tax and CN. Ratification of Decree Law 285/1999 by 25,237 no retroactive effect under the original decree unconstitutional incurable Vote .- Drs. Belluscio and Bossert: Corresponds to the judiciary the constitutional control over the conditions under which the Executive issues decrees of necessity and urgency, as well as support for constitutional control as to the substance of the measures taken, where this is discussed in a particular case. Dr. Boggiano vote: Only in situations of serious disorder that threaten the existence, security or public order or economic that must be summoned without delay the Executive Branch can make up their own rules which the powers of Congress, provided that it is impossible to respond to exceptional circumstances. DEC 285-1999 / / WITH Article 99 Inc. 3 / / ACT 25237 / / ACT Article 20 CS 24156, CAPITAL FEDERAL, 20/09/2002 ARATULA: Zofracor SA c / National Government Publications: JA 2003 II, 27, Schvartzman and commented on by Sebastian Alejandro Toranzo / / LL 2003 C,-S 41-105311., reviewed by John Mirko / / LL 2003 C, 315-105389 .-
(3) Since only the Legislature by a formal law may impose taxes, fees and contributions, it must contain the essential norm the taxable event, among which is the determination of the base, it can be concluded that art. 59 of 25,237 law and the administrative decision of the General Headquarters of Ministers, are unconstitutional, while the annual rate set to be received by the General Inspectorate of Justice, whose character has been recognized tax. Should note that although the constitutional reform after Congress may, under certain circumstances, resort to legislative delegation, it can not understand the essence of the power of taxation, since the principle of reservation enshrined in art. NC 17 has remained intact, so it would not be admissible intelligence that puts you in conflict. LAW Article 25237 59 / / CON Section 43 CFCA III, CAPITAL FEDERAL, 13/02/2001 FACE: SAM & Sons Langenau CIFI and AG c / EN-M ° Justice and Human Rights - General Inspectorate of Justice, decision 55/00 s / Amparo 16,986 law PUBLICATIONS: 01/07/1920 ED, ADM, 21-146
Principle of Equality
The principle of equality enshrined in Article 16 of our Constitution prescribes " La Nación Argentina does not support prerogatives of blood or birth: no personal privileges nor titles of nobility. all people are equal before the law and admissible to employment without any condition other than ability. Equality is the basis of taxes and public burdens ... "
The principle of equality is inherent in the rule of law, receiving his first declaration of independence enactments of the United States of America as well as in the statement of rights culminating expression of citizens of the French Revolution. From the fiscal perspective, the principle of equality has set a real limit to the power of taxation as the judiciary, as a body to interpret our Constitution,
may invalidate the law that hurt. (1)
This principle through time has acquired different shades, to the current interpretation of it, so that in 1875 our supreme court in the file titled "Criminal c / Olivar Guillermo" provides that the tax laws should be equal in regard to those who are on an equal footing. Already in 1923 the court accepted the distinction in tax laws, provided they make no differences between races, religion, sex or color of people. Continuous and adequate court the concept of equality in decision being "I. Unanue C / Municipality of the Capital provides equality before tax must be interpreted in the burden faced by individuals made in similar circumstances.
Finally the court ruled that the principle of equality is based on ability to pay the taxpayer, ie manifestations of objective or subjective wealth must take into account the legislature as a tribute bonding conditions. Therefore not prevent the formation of categories provided as established in 1923, not calling at issues of race, sex, religion etc.
Now, if we define equality before the tax as the virtuality of the standard measure of ability to pay the taxpayer, we should not overlook the Article 4 of the supreme law, as above will analyze in this article in insert the drill question: "... imposed equitably and proportionally the population's general conference. " On this point Dr. Alfredo Orgaz former minister and chairman of our supreme court expressed "... the tax must be equal, to equal tax treatment equal capacity with respect to the same wealth" .-
conclude with this principle forget the power that Article 75 Inc. 2 "... impose direct taxes for a specified term and proportionally the same throughout the territory of the nation ... "
(1) Dino Jarach P. Tax Law Course 88
Court Vote Drs. Buján and Licht: The law establishing a 24,977-integrated tax system simplified for small taxpayers, does not violate the principle of equality-art 16, Constitution-by the mere fact that professionals, who can choose from the Simplified Scheme do not, are categorized by law as registered in the tax charge Value Added, if parallel is not shown that the method chosen by the legislature means an unreasonable or arbitrary distinction. Vote Dr. Coviello: The under exceptional road, less for the purpose of declaring the law unconstitutional 24,977, to affect the principle of equality and the ability to pay, is unfair if the defect is not manifiesto.LEY 24977 / / WITH Art. 16 / / 16986 CFCA I LAW, CAPITAL FEDERAL, 07/06/1999 FACE: Barns Quinteros, Sofia c / Federal Public Revenue Administration PUBLICATIONS: LL 1999 F, 471-99697 / / LL 1999 F, 629-99752-S., Comments from Fabiana Haydée Schafrik
instituted tax 25,053 taxed by law to natural persons or entities who own or possess automotive market at a cost exceeding 4,000 pesos, or imposed on the taxpayers' ability to pay expressed by certain manifestations of their heritage. Not notice the existence of arbitrariness or illegality in the claim to charge a person with disabilities, owner of a car purchased in terms of Act 19,279, the tax for the National Teacher Incentive Fund, as the benefits established by law 19,279 and its amendments, while involving only a donation for the purchase of vehicles and not in relation to his possession or property, may not extend to a tax nature clearly different from those given by the Commission. The tax breaks should be of the letter of the law, the undoubted intention of the legislature or the necessary implication of the rules which lay down, and out of those assumptions is for the strict interpretation of the respective clauses, which must be taking into account the overall context of the laws and the purposes for which the report, because the first rule of interpretation is to give full effect to the intention of legislador.LEY 25053 / / ACT 19279CS, CAPITAL FEDERAL ,6-11-2001CARATULA: Vallori, Mirta Graciela s / Amparo PUBLICATIONS: Failures Drs 324:3752
Homes
Vote Count: The local legislature to establish a special regime, ie a different treatment for these entities in the gross income tax did more than recognize the particular complexity involved in its activity and that is determined largely by state controls to which is subject, a complexity that would result also serious difficulties in establishing accurate time which is the taxable amount of the tax. Therefore, it is not clear how the regulation Art. 158 of Ref. local tax may violate the guarantee of equality, but if one considers that the High Court has held "that no violation of the guarantee of equality when the legislature is in a different way to consider different situations, not hostile against certain individuals or groups of persons or improper personal or group privilege and actually puts all financial institutions an equal footing, differentiating, yes, other subjects performing brokerage activity .--- Dr. Vote Count : It also notes that the alleged confiscatory not patently arises from the challenged standard, factual debate is needed deeper. And obviously declaratory action of unconstitutionality, is general and abstract, is not the right way to do this debate, which should be substantiated by other types of individual processes. TSJ, CIUDAD DE BS AS 3-2005 ,6-FACE: Specialized Banking Association, Civic Association c / GCBA s / PUBLICATIONS unconstitutional STATEMENTS Action: ED 212, 200-53325, reviewed by Erica Oronella
Silvina
instituted tax 25,053 taxed by law to natural persons or entities who own or possess automotive market at a cost exceeding 4,000 pesos, or imposed on the taxpayers' ability to pay expressed by certain manifestations of their heritage. Not notice the existence of arbitrariness or illegality in the claim to charge a person with disabilities, owner of a car purchased in terms of Act 19,279, the tax for the National Teacher Incentive Fund, as the benefits established by law 19,279 and its amendments, while involving only a donation for the purchase of vehicles and not in relation to his possession or property, may not extend to a tax nature clearly different from those given by the Commission. The tax breaks should be of the letter of the law, the undoubted intention of the legislature or the necessary implication of the rules which lay down, and out of those assumptions is for the strict interpretation of the respective clauses, which must be taking into account the overall context of the laws and the purposes for which the report, because the first rule of interpretation is to give full effect to the intention of legislador.LEY 25053 / / ACT 19279CS, CAPITAL FEDERAL ,6-11-2001CARATULA: Vallori, Mirta Graciela s / Amparo PUBLICATIONS: Failures Drs 324:3752
Homes
Vote Count: The local legislature to establish a special regime, ie a different treatment for these entities in the gross income tax did more than recognize the particular complexity involved in its activity and that is determined largely by state controls to which is subject, a complexity that would result also serious difficulties in establishing accurate time which is the taxable amount of the tax. Therefore, it is not clear how the regulation Art. 158 of Ref. local tax may violate the guarantee of equality, but if one considers that the High Court has held "that no violation of the guarantee of equality when the legislature is in a different way to consider different situations, not hostile against certain individuals or groups of persons or improper personal or group privilege and actually puts all financial institutions an equal footing, differentiating, yes, other subjects performing brokerage activity .--- Dr. Vote Count : It also notes that the alleged confiscatory not patently arises from the challenged standard, factual debate is needed deeper. And obviously declaratory action of unconstitutionality, is general and abstract, is not the right way to do this debate, which should be substantiated by other types of individual processes. TSJ, CIUDAD DE BS AS 3-2005 ,6-FACE: Specialized Banking Association, Civic Association c / GCBA s / PUBLICATIONS unconstitutional STATEMENTS Action: ED 212, 200-53325, reviewed by Erica Oronella
Silvina
Principle of Proportionality
Well, this principle is linked closely to the principle of equality because its full expression is verified in the development the theory of "taxable capacity" in honor of the brevity, we refer to the above on the principle of "equality" but it would make a clarification, Article 4 of our Constitution does not prohibit the inclusion of progressive scale, as does not require a proportionality on the number, but socio-economic assessments of the subject reached .-
Equity Principle
The principle of equity in the Constitution Argentina is incidentally in the Article 4 as a condition of use of taxing power by the Congress of the nation, no But a court in numerous cases that it is not a function of the judiciary to check the fairness of the tax on the amount or the tax base chosen by the legislature, in case the court has meant that it is not possible equity weighting in relation to resource requirements and the magnitude of the charge, but in more recent court decisions identify the principle referred to non-confiscatory (1).
(1) Dino Jarach p. 325 Finance and Tax Law
principle of generality
This principle is closely related to Article 16 of our law framework already mentioned, however this time should tested negative in his face, because it is not that everyone should pay taxes, but nobody should be excused for personal privileges, class, caste etc. The court has said "The general is an essential aspect of taxation, it is not permissible to major part of the population for the benefit of another."
As stated in analyzing the principle of legality is only the Congress to waive the charges, whenever deemed necessary and authorized by Section 75, 18 and 19 of the NC Court
paying Exemption a charge must be included expressly in the rule and must be interpreted with restrictive because it is an exception to general rules. The provision of art. 4 of the 9434-provincial law on tax exemption for the Banco de la Provincia de Buenos Aires-rate falls short of justice for it to correspond to a tax bracket does not expressly stated in the rule. 9434 Article 4 CNCI Leyba F, CAPITAL FEDERAL, 11/05/1998 FACE: Banco de la Provincia de Buenos Aires c / Brunelli, Nelson AJ PUBLICATIONS: LL 1999 B, 253-98494
(1) Dino Jarach p. 325 Finance and Tax Law
principle of generality
This principle is closely related to Article 16 of our law framework already mentioned, however this time should tested negative in his face, because it is not that everyone should pay taxes, but nobody should be excused for personal privileges, class, caste etc. The court has said "The general is an essential aspect of taxation, it is not permissible to major part of the population for the benefit of another."
As stated in analyzing the principle of legality is only the Congress to waive the charges, whenever deemed necessary and authorized by Section 75, 18 and 19 of the NC Court
paying Exemption a charge must be included expressly in the rule and must be interpreted with restrictive because it is an exception to general rules. The provision of art. 4 of the 9434-provincial law on tax exemption for the Banco de la Provincia de Buenos Aires-rate falls short of justice for it to correspond to a tax bracket does not expressly stated in the rule. 9434 Article 4 CNCI Leyba F, CAPITAL FEDERAL, 11/05/1998 FACE: Banco de la Provincia de Buenos Aires c / Brunelli, Nelson AJ PUBLICATIONS: LL 1999 B, 253-98494
tax rules - including adjudication by-fiscal benefits should not be construed more narrowly in its text but in a way supports the intent of the law is fulfilled in accordance with the principles of a fair and unobtrusive interpretation what amounts to an admission that the tax breaks may be the obvious intent of the standard and its necessary implication .- The exemptions must be of the letter of the law, the undoubted intention of the legislature or the necessary implication of the rules establish them. Out of these requirements, a strict interpretation of the grounds for exemption. Law 19640 CFCA IV, CAPITAL FEDERAL, 28/04/1998 FACE: Fabrisur, SA c / national state-DGI-s / DGI PUBLICATIONS: ED 181, 647-49100
principle of non-confiscatory
principle of non-confiscatory
Nowhere else as in this matter reveals more clearly the constitutional protection poured in Article 17 (The property is inviolable and no inhabitant of the Nation can be deprived thereof except by virtue of a sentence based on law. The expropriation for public interest must be qualified by law and previously compensated. Only Congress levies the taxes mentioned in Article 4. No personal service is required, except by law or sentence based on law ...). As the court holds that it is permissible to deprive citizens via tax their property rights.
The court made clear that doctrine for example, the tax free transfer of goods, so that first established a 15% on the gut. Then a 20% and finally stabilized at 33% (1), the same has held under property tax, considered confiscatory because it absorbs more than 33% of the annual rent the property, provided that the landlord exploits rationally.
The court has had occasion to address the accumulation of several charges in a single taxpayer, and in the ruling "Cia Tramways Ltd. Anglo Argentina ", 1941, stating that this addition at the head of a taxpayer not to be unconstitutional, if not impose taxes on the same subject.
To conclude this principle, it is the following reflection, the court is not invalid consumption taxes or income that greatly exceed the rate imposed arbitrarily by the Supreme Court, example is the excise tax on cigarettes to reach 200% at times.
The court has had occasion to address the accumulation of several charges in a single taxpayer, and in the ruling "Cia Tramways Ltd. Anglo Argentina ", 1941, stating that this addition at the head of a taxpayer not to be unconstitutional, if not impose taxes on the same subject.
To conclude this principle, it is the following reflection, the court is not invalid consumption taxes or income that greatly exceed the rate imposed arbitrarily by the Supreme Court, example is the excise tax on cigarettes to reach 200% at times.
(1) Dino Jarach Public Finance and Tax Law Pag 329/330
Court
Court
taxes, fees and contributions are forced and compulsory taxes, and their establishment must meet the constitutional precautions legality, equality and not confiscatory. In order to the principle of non-confiscatory, is unconstitutional because of injury to property law the charge absorbs more than thirty-three percent of the tax base. Objective parameters that establish fiscal and tariff for the years 1987/1994 in the Municipality of Buenos Aires that give scores according to zones, edilicias amenities, services, etc., Are not unreasonable based on the determination of the value of tax. CNCI K, CAPITAL FEDERAL, 17/05/1999 FACE: Corti, Aristides H. and other c / City of Buenos Aires PUBLICATIONS: LL 1999 F, 368-99645
Double taxation - Tax Power in Space-
an organized state in the form of federal government, empowered individuals coexist tax, in that sense it is possible to verify a phenomenon called superposition of double taxation levies or
The Swiss Federal Court doctrine defines this phenomenon as the taxability of a subject or object of similar concepts at the same time by different entities with taxing power
.- Following of competition between the Nation and the Provinces in indirect taxation and allocation of national convention to establish direct taxes for a given time, there arises the possibility of overlapping taxation or double taxation .-
Homes
however, understands that this is a natural phenomenon, saying in a State that adopts the federal system government, which at their various levels are to place liens and even overlap of double taxation, not to be unconstitutional as each estate with the power of taxation does not violate the constitutional principles governing the matter.
Similarly the court in the Province of Buenos Aires has said "The overlap of taxes does not imply, by itself a constitutional violation, which would exist if one of the charges was outside the bounds of fiscal authority authority that established it. " FACE: Equestrian Company Argentina SA c / Municipalidad de La Plata s / PUBLICATIONS constitutional claim: AyS 1988-III, 354; as well has also been issued in the White House failure SCA c / Municipalidad de General Pueyrredón s / constitutional claim to support "The assumption of superposition of charges against constitutional norms occurs when one is outside the authority of the authority was established. " PUBLICATIONS: AyS 1989-I, 730.
Double taxation National
The phenomenon described so far, it is called double taxation, National, because as explained above in the federal governments are conflicts of double and multiple taxation from central government and provincial governments or either alone among the latter.
The Double taxation is bad from the point of view of the active subject of the relationship of taxation, by requiring multiple administrations, expensive to raise and a promotion of the bureaucracy. From the perspective of the taxpayer dangerously increases the tax burden and has to return the exercise viable productive activities.
Thus, the combination of taxing powers between the Nation and the province generates the coexistence of very similar indirect taxes, leading to inevitable conflicts of overlapping taxes, several modifications to the local regimes with the National system tried in vain to avoid these conflicts, until the enactment of the 20,221 law "Imp-sharing system between the national and Pcias. Interim Financial Agreement for Distribution of Federal Resources to Provinces "of 1986. In 1994 constitutional reform established in Article 75 Paragraph 2, the sharing of national taxes and imposed the national Congress passed a law convention, LAW 23,548 of federal Partnership Tax Appeals and its modifications and amendments of the Law LAW 25,570 . "National Agreement - Provinces on the financial relationship and foundation of a regime of Federal Tax Sharing Agreement between the national state, the provinces and the autonomous city of Buenos Aires, Feb. 27 2002 ".-
Partnership regime establishes a regime of distribution of fiscal resources between the nation and the provinces to distribute funds shall consist of the proceeds from the collection of all existing or future national taxes, with exceptions as import and export rights provided for in article 4 of our Constitution, Those whose distribution between the government and the provinces, it is intended or expected in other systems or special arrangements for partnership; The national taxes and hypothecation to purposes or destinations among others.
multilateral double taxation agreement (Provincial Tax on gross income)
As noted in explaining the phenomenon under consideration is possible overlap between states tax the same level of autonomy under the Federal system, so that activity that takes place in multiple jurisdictions would lead to the recovery of multiple and similar taxes, in the case of gross revenues not only occur between provinces but also within the same province as the municipalities down real charges profitable activities. -
In order to avoid this unwanted phenomenon, originally an agreement was signed between the Municipality of the City of Buenos Aires (at the time) and the Province of Buenos Aires, later serving as background for the achievement of the agreement which continues in force since 1977 with the purpose of limiting the taxing power of the parties involved for If assets were carried on more than one jurisdiction .-
In short, all gross receipts from activities achieved a unique and inseparable process are attributed to more than one jurisdiction, such that the subject reached markets its products in various jurisdictions and manufactured in another, another example might be that the taxpayer maintain the place of business in one jurisdiction and is marketed or manufactured in one or several jurisdictions .-
The solution reached by the convention is as follows: Section 2
"....... convention activities under this Agreement, shall be distributed to all jurisdictions as follows:
a) fifty percent (50%) in proportion to the costs actually incurred in each jurisdiction; b) fifty percent (50%) remaining in proportion to the gross receipts from each jurisdiction in the case of operations carried out by through branches, agencies or other similar permanent establishments, brokers, commission agents, reps or agents, etc., with or without a relationship of dependency. For the purposes of this subsection, the proceeds from the transactions referred to in the last paragraph of Article 1, shall be attributed to the jurisdiction for the domicile of the purchaser of the goods, works or services. "
words, the article in question makes the mechanics of distribution, of course, the agreement provides for exceptions and special arrangements, but the transcript paragraph allows us to observe the technique adopted by different jurisdictions to avoid the phenomenon of double taxation
.- Double taxation International
As indicated above different autonomous states within a country generates conflicts of overlapping taxes, But though they were sovereign states, since they are taxed by two or more countries simultaneously, as there are different criteria for assigning taxing powers as the personality of laws, address the subject reached, nationality, place of business or in this case the source of taxable income .-
The prevailing criterion in the laws of capital-exporting countries is that of Private the subject, nationality, principal place of business, ie these laws seek to tax the subject inside and outside its territory, however countries capital importers chose the criterion of source, interpret because income is taxed where it originated .-
This disparity of criteria imposed the same subject, in the same period, under similar concepts for two different entities with taxing power . To avoid this phenomenon down again different solutions:
a) To the general principles that reach out to international uniformity
b) Subscription of bilateral or multilateral agreements with foreign powers, the most common clause in such agreements is the possibility of use the tax credit, meaning that both laws affect the total income, however be allowed to deduct to subject the percentage is entered in the foreign country. However, the most desirable model is the legislative harmonization, as is done in the European Community in force today
over twenty-five treaties with foreign powers to avoid double taxation .-
Double taxation - Tax Power in Space-
an organized state in the form of federal government, empowered individuals coexist tax, in that sense it is possible to verify a phenomenon called superposition of double taxation levies or
The Swiss Federal Court doctrine defines this phenomenon as the taxability of a subject or object of similar concepts at the same time by different entities with taxing power
.- Following of competition between the Nation and the Provinces in indirect taxation and allocation of national convention to establish direct taxes for a given time, there arises the possibility of overlapping taxation or double taxation .-
Homes
however, understands that this is a natural phenomenon, saying in a State that adopts the federal system government, which at their various levels are to place liens and even overlap of double taxation, not to be unconstitutional as each estate with the power of taxation does not violate the constitutional principles governing the matter.
Similarly the court in the Province of Buenos Aires has said "The overlap of taxes does not imply, by itself a constitutional violation, which would exist if one of the charges was outside the bounds of fiscal authority authority that established it. " FACE: Equestrian Company Argentina SA c / Municipalidad de La Plata s / PUBLICATIONS constitutional claim: AyS 1988-III, 354; as well has also been issued in the White House failure SCA c / Municipalidad de General Pueyrredón s / constitutional claim to support "The assumption of superposition of charges against constitutional norms occurs when one is outside the authority of the authority was established. " PUBLICATIONS: AyS 1989-I, 730.
Double taxation National
The phenomenon described so far, it is called double taxation, National, because as explained above in the federal governments are conflicts of double and multiple taxation from central government and provincial governments or either alone among the latter.
The Double taxation is bad from the point of view of the active subject of the relationship of taxation, by requiring multiple administrations, expensive to raise and a promotion of the bureaucracy. From the perspective of the taxpayer dangerously increases the tax burden and has to return the exercise viable productive activities.
Thus, the combination of taxing powers between the Nation and the province generates the coexistence of very similar indirect taxes, leading to inevitable conflicts of overlapping taxes, several modifications to the local regimes with the National system tried in vain to avoid these conflicts, until the enactment of the 20,221 law "Imp-sharing system between the national and Pcias. Interim Financial Agreement for Distribution of Federal Resources to Provinces "of 1986. In 1994 constitutional reform established in Article 75 Paragraph 2, the sharing of national taxes and imposed the national Congress passed a law convention, LAW 23,548 of federal Partnership Tax Appeals and its modifications and amendments of the Law LAW 25,570 . "National Agreement - Provinces on the financial relationship and foundation of a regime of Federal Tax Sharing Agreement between the national state, the provinces and the autonomous city of Buenos Aires, Feb. 27 2002 ".-
Partnership regime establishes a regime of distribution of fiscal resources between the nation and the provinces to distribute funds shall consist of the proceeds from the collection of all existing or future national taxes, with exceptions as import and export rights provided for in article 4 of our Constitution, Those whose distribution between the government and the provinces, it is intended or expected in other systems or special arrangements for partnership; The national taxes and hypothecation to purposes or destinations among others.
multilateral double taxation agreement (Provincial Tax on gross income)
As noted in explaining the phenomenon under consideration is possible overlap between states tax the same level of autonomy under the Federal system, so that activity that takes place in multiple jurisdictions would lead to the recovery of multiple and similar taxes, in the case of gross revenues not only occur between provinces but also within the same province as the municipalities down real charges profitable activities. -
In order to avoid this unwanted phenomenon, originally an agreement was signed between the Municipality of the City of Buenos Aires (at the time) and the Province of Buenos Aires, later serving as background for the achievement of the agreement which continues in force since 1977 with the purpose of limiting the taxing power of the parties involved for If assets were carried on more than one jurisdiction .-
In short, all gross receipts from activities achieved a unique and inseparable process are attributed to more than one jurisdiction, such that the subject reached markets its products in various jurisdictions and manufactured in another, another example might be that the taxpayer maintain the place of business in one jurisdiction and is marketed or manufactured in one or several jurisdictions .-
The solution reached by the convention is as follows: Section 2
"....... convention activities under this Agreement, shall be distributed to all jurisdictions as follows:
a) fifty percent (50%) in proportion to the costs actually incurred in each jurisdiction; b) fifty percent (50%) remaining in proportion to the gross receipts from each jurisdiction in the case of operations carried out by through branches, agencies or other similar permanent establishments, brokers, commission agents, reps or agents, etc., with or without a relationship of dependency. For the purposes of this subsection, the proceeds from the transactions referred to in the last paragraph of Article 1, shall be attributed to the jurisdiction for the domicile of the purchaser of the goods, works or services. "
words, the article in question makes the mechanics of distribution, of course, the agreement provides for exceptions and special arrangements, but the transcript paragraph allows us to observe the technique adopted by different jurisdictions to avoid the phenomenon of double taxation
.- Double taxation International
As indicated above different autonomous states within a country generates conflicts of overlapping taxes, But though they were sovereign states, since they are taxed by two or more countries simultaneously, as there are different criteria for assigning taxing powers as the personality of laws, address the subject reached, nationality, place of business or in this case the source of taxable income .-
The prevailing criterion in the laws of capital-exporting countries is that of Private the subject, nationality, principal place of business, ie these laws seek to tax the subject inside and outside its territory, however countries capital importers chose the criterion of source, interpret because income is taxed where it originated .-
This disparity of criteria imposed the same subject, in the same period, under similar concepts for two different entities with taxing power . To avoid this phenomenon down again different solutions:
a) To the general principles that reach out to international uniformity
b) Subscription of bilateral or multilateral agreements with foreign powers, the most common clause in such agreements is the possibility of use the tax credit, meaning that both laws affect the total income, however be allowed to deduct to subject the percentage is entered in the foreign country. However, the most desirable model is the legislative harmonization, as is done in the European Community in force today
over twenty-five treaties with foreign powers to avoid double taxation .-
