The Stamp Tax (“Impuesto de Sellos”) is a tax reserved to the provinces by the fiscal pact in force between the national government and the provinces. It is a provincial tax levied on all “instruments”, acts of an onerous nature formalized in public or private instruments or by correspondence, whether granted within the jurisdiction that levies it, or outside it in the cases specially established by law. An instrument is understood to be any deed, paper, or document from which the perfection of acts, contracts and operations can be inferred, by which compliance with obligations can be demanded without the need for another document and regardless of the acts actually performed by the taxpayers. This is established in Section 9, paragraph b), item 2, second paragraph of Law No. 23548, also the Tax Code of the City of Buenos Aires provides that “An instrument is understood as any deed, paper or document from which the perfection of the acts and contracts covered by the tax arises, in such a way that it has the external characteristics of a legal title with which the compliance of the obligations can be demanded without the need of another document and regardless of the acts actually carried out by the taxpayers”.
Historically, the Supreme Court has consistently interpreted that the provinces and the City of Entre Ríos cannot levy stamp tax on instruments that are not self-sufficient to enforce the obligations set forth therein. In “Esso Petrolera S.R.L. v. Prov. de Entre Ríos” it held that “the claim of the Province of Entre Ríos to levy stamp tax on the letters of offer entered into by the plaintiff is inadmissible, since they lack the self-sufficiency required to comply with the obligations set forth therein, and, therefore, the provincial tax claim is in conflict with the obligation assumed in paragraph II of item II of clause b) of section 9 of article 9 of the Argentine Constitution, and therefore, the provincial tax claim is in conflict with the obligation assumed in paragraph II of section 9 of article 9 of the Argentine Constitution. b) of section 9 of Law 23.548 (Adla, XLVIII-A, 53) on federal co-participation (from the judgment of the Court, according to the doctrine set forth in “Gas Natural Ban S.A. y otro c. Provincia del Neuquén”, 27/09/2005 -DJ 15/02/2006, 383 – IMP 2006-3, 476- to which it refers, among others)” (Judgments 330:2617)” (Fallos 330:2617)”. Identical position arises from the case “Yacimientos Petrolíferos Fiscales SA v. Tierra del Fuego, Provincia de” (Judgments: 327:1108); concordant with those of the cases “Gas Natural Ban S.A. y otro c. Neuquén, Provincia del” (Judgments: 328:3599); “Esso S.A.P.A. v. Santiago del Estero, Provincia de. Santiago del Estero, Provincia de s/acción declarativa de certeza”, dated November 1, 2005; “Esso Petrolera Argentina SRL (continuadora de Esso S.A.P.A.) c. Entre Ríos, Provincia de y otro (Estado Nacional citado como tercero) s/acción declarativa”, dated June 13, 2006; “Petrobras Energía S.A. c. Entre Ríos, Provincia de”, dated June 13, 2006; “Petrobras Energía S.A. c. Entre Ríos, Provincia de” (Judgments: 322:3599). Entre Ríos, Province of” (Judgments: 330:2617); and “Shell Compañía Argentina de Petróleo S.A. vs. Entre Ríos, Province of” (Judgments: 332:2120).
Recently, a commercial company filed a claim with the government administration of public revenues (AGIP), the entity that collects taxes in the City of Buenos Aires, to declare null and/or illegitimate a summons claiming the payment of $1,278,224.49 in Stamp Tax, related to eight purchase orders issued by the Ministry of Health of the Nation or by the Ministry of Social Development of the Nation, as the case may be, under penalty of issuance of a debt bill.
The company is engaged in the manufacture and marketing of dairy products and has three industrial plants located in the Province of Santa Fe. Its activity also includes the participation in bidding processes, which are promoted within the framework of food programs carried out by the National Government. This company is usually the successful bidder in some of these bids, where the items are then shipped from the plant in Santa Fe to vulnerable sectors in the Provinces of Corrientes, Chaco, Formosa and Misiones.
It is then under this context that the AGIP claims from the company the payment of the Stamp Tax in CABA by the powers conferred in art. 482 of the CABA Tax Code T.O. 2015, which states: “Debt Slip. Enforceable title: When, within the framework of the powers of verification, non-compliance with the provisions of this Title is found, a debt report for the unpaid tax shall be issued, prior administrative intimation, which shall have the character of enforceable title.
When the Governmental Administration of Public Revenues considers it necessary, in order to determine the tax obligation, to initiate a process of ex officio determination, the procedure set forth in Article 145 of this Code shall be applied as appropriate”.
In view of this, the company filed the lawsuit in question, in which: 1) it alleged a manifest violation of its right of defense; 2) it requested the declaration of unconstitutionality of section 482 mentioned above; 3) it requested that the AGIP be ordered to conduct the ex officio assessment procedure provided for in the Tax Code; 4) in the alternative, it invoked the inadmissibility of the tax.
For this last point, it argued that the purchase orders intended to be taxed do not constitute instruments under Law No. 23548 and the CABA Tax Code, because they do not contain the signature of both parties as an essential condition of validity of any act executed privately under the terms of section 1012 of the Civil Code then in force, so they did not have the external characteristics of a legal title with which the performance of the obligations could be demanded without the need of another document. In case it was understood that there was a taxable instrument, it was a case of exclusion of the tax according to the local Tax Code (art. 432, inc. c) of T.O. 2015), according to which the acts, contracts and transactions executed in the CABA do not pay the Stamp Tax when the goods object of the sale and purchase are located outside the CABA (a situation that was verified in the case, since the purchase orders identified the place of manufacture of the products sold – Santa Fe Province – and this was ratified with remittances from which it was clear that the origin and destination of the products had taken place outside the CABA). The mere awarding of the bids did not in itself imply the taxability of the purchase orders, since they were not self-sufficient for the purpose of demanding compliance with the obligations contracted therein, in view of the concept of instrument for the Stamp Tax, thus lacking the required autonomy, and their mere exhibition was not sufficient for such purpose.
The first instance judge of the Contentious, Administrative and Tax Court (CAyT) of CABA upheld the claim and declared the tax claim inadmissible. It stated: 1) that the purchase orders did not transcribe the offer of the company nor did they reproduce in any way its essential elements, according to the local Tax Code; 2) that they did not contain any indication of the date and place of delivery of the product, stating in them the legend “see particular terms and conditions, term and place of delivery according to the specifications”; and 3) that “…. the mere mention of the parties and the products delivered -in line with the particular conditions- does not allow to gather, in that exclusive document, the essential stipulations of the contract for the supply of products, since with its mere existence the parties cannot demand the performance of the contract they have perfected…the tax claim is based on a ‘sum of elements that do not lead to prove the existence of the taxable event but, rather, reveal the absence of a single instrument that is taxable by the stamp tax”.
The decision was appealed by the Government of the City of Buenos Aires (GCBA) and confirmed by the Court of Appeals, which denied the appeal of unconstitutionality to the GCBA and motivated the filing of the same before the Superior Court of Justice in a complaint.
Finally, the TSJ CABA, with the vote of Judges Ruiz and Weinberg, and Judge Lozano, rejected the complaint filed by the GCBA, and the decision of the previous instances remained firm. The court based its decision on the fact that the GCBA failed to properly raise the unconstitutionality of the case, but also reaffirmed the decision of the chamber in the previous instance stating that the purchase orders in question do not meet the condition of being self-sufficient in the sense that through them the compliance of the obligations set forth therein “without the need of another document”, in the terms of the Federal Tax Co-participation Law, can be demanded. “As a complement to the purchase orders, the bidding documents must necessarily be resorted to in order to build an ‘instrumental complex’ that proves the existence of the instrument, which shows the lack of verification of the taxable event of the stamp tax; that is, the absence of a single instrument that allows to be taxed with that tax” (emphasis in the original).
To conclude, it should be noted that this is not the only case in which a private individual is forced to pay a wrongly founded tax.