Without prejudice to the questionable legislative technique of creating or modifying taxes through a law of budgetIn Chapter XI of the project sent by the Executive Power to the Congress, called "On tax policy and administration", in customs matters, innovations are introduced regarding deadlines for prescribing actions, on the provision of services and on delegation to the PEN of the Legislative power to set export duties.
Regarding the stock prescriptions legislated in the Customs Code, article 73 of the draft, shortens the term to claim unpaid taxes from 5 years to 3 years and to claim taxes incorrectly paid, to claim stimuli for exports not received and to claim amounts incorrectly paid, and to impose and enforce penalties for the commission of customs offenses (it should be noted that these last two are provisions of a criminal nature -infractional- ).
This is a healthy measure, since, although it will make customs operators more alert to the shortened prescription periods that run against them, the long processing times for customs procedures will decrease as a consequence of the shortened prescription periods that run. against the state.
Regarding services, article 80 of the draft of the draft incorporates into the concept of merchandise defined in the Customs Code the provision of services carried out in the country whose effects are generated abroad, article 81 considers exporters to their providers and to the transferors of intellectual property rights and article 82 determines as taxable value the result of the sales invoice or equivalent document.
These ideas reinforce the gross conceptual error that was incurred by passing Law 25.063, on internal taxes, which assimilated to the definition of "merchandise" of the Customs Code the services provided abroad with effects in the national territory, the rights of author and intellectual property.
In the new draft services rendered in the national territory with effects abroad are assimilated to the same definition of merchandise. Neither services nor intellectual property rights can be assimilated to the concept of merchandise legislated in the Customs Code, for two reasons: firstly, because they are not tangible things, in the terms of articles 10 -original- and 9 of the Customs Code, susceptible to being imported –introduced to the customs territory- or exported –extracted from the same territory- and therefore not susceptible to physical control in said movements; and, secondly and as a consequence of this last criterion, they cannot be included in the Nomenclature of the Harmonized System for the Designation and Codification of Merchandise (agreement approved by Argentina by law 24.206).
Hence, in international economic legal matters, neither services nor intellectual property rights were contemplated in the International Agreement for the Simplification and Harmonization of Customs Regimes (approved by Argentina by law 27,138), nor in the General Agreement on Tariffs. Customs and Trade (GATT) of 1947 and also in the updated 1994 in the framework of the Uruguay round that gave rise to the so-called Marrakesh agreements, precisely because also in the framework of these latter agreements the General Agreement on Trade of Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
And this was so precisely because the international regulation of trade in goods, services and intellectual property was foreseen at the same level but like three different subjects. For this reason, the misused expression "export" (or "import") of services or of intellectual property rights, which can only be used for merchandise, as tangible things, is not appropriate. Consequently, it is not legally appropriate to apply export or import duties to them. In any case, without the need to modify the Customs Code, the correct thing is to legislate the tax as one more internal tax.
Finally, in relation to the delegation of the legislative faculty of export rights, article 83 of the draft gives the National Executive Power the exercise of the legislative power delegated to it by Article 755 of the Customs Code with an aliquot limit of 33% and until the year 2020.
Then article 84 of the draft it retrospectively confers on it the regulations issued prior to the enactment of the new law under the aforementioned article 755 of the Customs Code. It does not appear that the high aliquot 33 % cap that the draft empowers to apply can circumvent the limits, based on Article 76 of the National Constitution, the Supreme Court demarcated to prevent the delegation of the constituent elements of taxes, and even less retroactively.
Thus, the viability of legal questions regarding export duties that are applied on the basis of the law eventually to be sanctioned cannot be ruled out.
FUENTE: https://www.iprofesional.com/impuestos/278276-congreso-comercio-exportaci%C3%B3n-Presupuesto-2019-expertos-adelantan-aspectos-aduaneros-incluidos-en-el-proyecto-de-ley