On June 3, 2025, the Supreme Court of Justice of the Nation (the “Court”) issued a ruling (the “Ruling”) in the case “Cepas Argentinas S.A. v. Córdoba, Province of s/ declaratory action of legal certainty” (the “Case”), granting the declaratory action of legal certainty (the “Action”) brought by Cepas Argentinas S.A. and declaring unconstitutional an article that established differential tax rates under a tax law of the Province of Córdoba.
The Case:
In 2016, Córdoba enacted Tax Law 10,324, which in Article 22 imposed differential tax rates: 0.50% for those conducting industrial activities with establishments located in the province, and 4.0% to 4.75% for those engaged in commercial activity without having establishments in the province, applied to declared gross income.
In response to this law, Cepas Argentinas S.A. (the “Plaintiff”), which had its industrial establishments in another province but conducted commercial activity in Córdoba, filed the Action to resolve the state of uncertainty regarding the Province’s intention to apply the differential rate and challenged the constitutionality of the Law.
The Action is intended to eliminate uncertainty about the existence, scope, or modalities of a legal relationship, provided that such lack of certainty could cause actual harm or injury to the plaintiff and there is no other legal means available to immediately resolve the situation.
Opinion of the Public Prosecutor’s Office: The Issue of Administrative Notice
The Opinion of the Public Prosecutor’s Office argued that the Action was inadmissible for the following reasons:
- The declaratory action of legal certainty filed by the plaintiff seeks a general and direct declaration of unconstitutionality of rules enacted by the local legislature without an actual harm or injury.
- It was argued that the application of the higher rate to the plaintiff was voluntary based on its own tax returns to avoid a payment notice, and nothing prevented it from paying the tax at the rate it considered correct.
- Since no notice or administrative proceedings had been initiated by the local tax authority, harm had not been proven, making the claim a consultative request regarding a hypothetical situation that might or might not occur.
The Court’s Ruling:
The Court departed from the Opinion and considered the Action admissible, taking into account the requirements for the admissibility of this Action:
- The Action is the appropriate avenue due to the existence of a law whose application may cause concrete harm to the plaintiff’s interests.
- Regardless of the general principle that harm must arise from an administrative act directed against the plaintiff’s interests in a direct and immediate manner, under certain circumstances, the challenged law itself, without any administrative enforcement, may produce concrete harm to the plaintiff.
- The issue at hand is not merely consultative, nor is the alleged harm purely hypothetical, as it has been demonstrated that the plaintiff is a taxpayer in the jurisdiction of Córdoba and has paid the gross income tax applying the differential rate, thereby establishing a fiscal legal relationship between the parties and sufficient interest.
- Regarding the merits, the Court referred to the criteria used in the cases “Bayer S.A. v. Santa Fe, Province of s/ declaratory action of legal certainty” and “Harriet y Donnelly S.A. v. Chaco, Province of s/ declaratory action of legal certainty.” It concluded that the differential rate based on the location of the taxpayer’s productive establishment is unconstitutional.
Therefore, the Court concluded that the application of the local tax law hinders interprovincial commerce and that the discrimination based on the location of the taxpayer’s productive establishment violates the principle of equality and disrupts the natural flow of commerce, effectively creating a form of “internal customs” prohibited by the National Constitution to disadvantage out-of-province products in favor of locally manufactured goods. The Court thus upheld the claim and declared Article 22 of Law 10,324 of the Province of Córdoba unconstitutional.
This decision establishes a significant jurisprudential precedent that relaxes the criteria for the admissibility of the Declaratory Action of Legal Certainty in tax matters, allowing this Action to be filed without the need for administrative action by the authorities.
