Argentina: Plenary ruling of the tax court on export duties ignores the Supreme Court precedent

In brief

On 26 April 2022, the tax court issued a plenary ruling establishing that it lacks the authority to hold laws unconstitutional in specific cases. It also ruled that the executive, according to Section 755 of the Customs Code, has the power to establish export duties, against the criteria of the Supreme Court of Justice in the precedent Camaronera Patagónica.


In detail

The constitutionality of the executive to establish export duties based on Article 755 of the Customs Code is in question

Historically, the Argentina tax court, comprised of tax and customs chambers, has rejected the possibility of declaring the unconstitutionality of tax or customs laws and their regulations based on Section 1164 of the Customs Code, which prohibits this, unless there is a precedent issued by the Supreme Court on the matter. 

However, decisions of the tax court have differed on this point, and the court has declared a law unconstitutional when the matter analyzed justified it, such as in the Petroquímica Comodoro Rivadavia case, among others.

In Petroquímica Comodoro Rivadavia SA c/DGA s/recurso de apelación, the tax court found that the general delegation norm contained in Section 755 of the Customs Code (which precedes the constitutional reform of 1994 that significantly limited the delegation of tax powers to the executive) empowers the executive to set export duties. In addition, the court decided that it cannot declare laws and regulations unconstitutional unless there is a Supreme Court precedent directly on the exact matter. The case was decided by a vote of four to three by the full complement of members of the customs chambers (with the significant absence of Dr. Garbarino, defender of the positions defeated by the majority) but the members of the court's tax chambers did not participate.

Although in Petroquímica Comodoro Rivadavia the court considered the Camaronera Patagónica precedent, the majority found that it did not apply because the matter before the court in Petroquímica Comodoro Rivadavia was the unconstitutionality of Decree 793/18, which reintroduced export duties in 2018. However, Camaronera Patagónica dealt with Resolution 11/2002 of the Ministry of Economy, which reintroduced export duties in 2002.

In Camaronera Patagónica, the court concluded that export duties are actually taxes, a conclusion rejected by the majority in Petroquímica Comodoro Rivadavia. The Camaronera Patagónica court also concluded that Section 755 of the Customs Code is not a valid delegating norm because it: (i) does not establish clear and precise guidelines for the executive power to exercise its tax authority; (ii) does not establish a time limit to the exercise of this power; and, (iii) does not establish a maximum limit of the duty to be applied. The Petroquímica Comodoro Rivadavia court reached the opposite conclusion. 

Consequently, the Petroquímica Comodoro Rivadavia decision contradicts Supreme Court of Justice precedent that appears to be directly on point.

However, this decision does not necessarily finally decide this issue. Dr. Soria indicated in his dissenting ruling his view that the plenary lacked the authority to resolve the issue because the members of the court's tax chambers did not participate in the decision.


We believe the debate at the tax court on the issue of whether export duties are actually taxes and whether the executive has the power to set export duties is not finished. The Petroquímica Comodoro Rivadavia ruling, with its clear departure from Supreme Court precedent, has opened the doors to new questions and debates.

Click here to download the Spanish Version.

Copyright © 2024 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.