It is unconstitutional to charge late payment interest when legal deadlines have expired




The Constitutional Court declared the lawsuit filed by the company Maxco SAC against Sunat for the collection of default interest inadmissible. Constitutional & Procedural Constitutional Gazette explains the main foundations of this new precedent in the following note. [STC File No. 03525-2021-PA/TC].

The Collegiate indicated that despite dismissing the claim, it stated that “given its status as supreme interpreter of the Constitution (…) it has the obligation to ensure due protection of fundamental rights in the ordinary jurisdiction.” For this reason, it analyzes the constitutionality of the collection of default interest regulated by article 33 of the TUO of the Tax Code.

Thus, it established as a binding precedent the rules contained in the 69th foundation of the sentence that establishes the following:

The substantial rule:

As of the day after the publication of this sentence, even in the procedures in process, the Tax Administration is prohibited from applying default interest after the legal term to resolve the administrative appeal has expired, regardless of the date in which the tax debt has been determined and regardless of the date that said appeal was filed, unless it can objectively prove that the reason for the delay is a consequence of the accredited bad faith or reckless conduct of the company.

The Judiciary, even in pending processes, is under the obligation to exercise diffuse control over article 33 of the TUO of the Tax Code, if this was applied for the period in which it allowed the computation of default interest after the expiration of the legal term to resolve an appeal in the tax administrative process, and, therefore, must declare the nullity of the administrative act that would have carried out said unconstitutional computation and correct it. Said computation will be valid only if the tax administration objectively proves that the reason for the delay was a consequence of the bad faith or reckless conduct of the taxpayer.

Likewise, the Judiciary must exercise diffuse control against article 33 of the TUO of the Tax Code, and not apply default interest after the expiration of the legal deadlines to resolve the claim or the appeals in the contentious-administrative process, unless it can objectively prove that the reason for the delay was the result of bad faith or reckless conduct of the defendant.

The procedural rule:

In the case of appeals filed that are being processed before the tax court and whose legal term to be resolved has passed, you have the right to wait for the issuance of a resolution that must observe the substantial rule of this precedent or to avail to the negative administrative silence to elucidate the matter necessarily in a contentious administrative process, as it is an equally satisfactory way, and not in an amparo process.

Any amparo claim in process that has been filed questioning an administrative resolution for the unconstitutional collection of default interest or for the delay in the issuance of a resolution in which it was presumed that said unconstitutional collection would be made, must be declared inadmissible in application of the Article 7, paragraph 2, of the NCPCo. In this case, you have 30 business days from the date of notification of the inadmissibility resolution to resort to the contentious-administrative process, in which the substantial rule of this precedent must be observed.


How did the Constitutional Court decide this case?

The appellant company files an amparo claim requesting the non-application of article 33 of the TUO of the Tax Code referring to the application of default interest related to a fine related to Income Tax of 2009. In this case the TC warns that after approximately 6 years After the fine was appealed, the tax debt resulting from late payment interest was determined. Thus, both the fine and the interest have been paid by the appellant.

The TC established that the constitutional process is not the ideal way to resolve the controversy, since there is an equally satisfactory way such as the contentious-administrative process. Therefore, in application of art. 7, paragraph 2 of the new Constitutional Procedure Code, declared the claim inadmissible because there was an equally satisfactory way.

Notwithstanding this, I develop some relevant aspects such as the power and the tax obligation; on the duty to contribute and the principle of non-confiscation of taxes; as well as the content of the right to petition, noting that as a general rule this right requires that the person who exercises it receive a duly argued response in writing “within the legal term, under responsibility” (f.j. 38), but that an exception to this It results when the company has a reckless conduct or in bad faith (f.j. 39), as well as when the complexity of the matter prevents a resolution within the legal term (f.j. 40)

Thus, when addressing the problem of the procedural burden and the iusfundmaental affectation to the administered as a result of the collection of default interest, it refers to the following:

The Constitutional Court, even in the light of its own experience, agrees that sometimes the procedural burden and the complexity of the cases may be elements that justify the delay in resolving them within the legal deadlines. But this is not what is under discussion. It simply happens that, due to the requirements arising from the protected content of the fundamental rights of petition and property, said delay, justified or not, cannot validly cause any type of damage to the taxpayer, unless it is attributable to his responsibility. .

Finally, it concludes that the main nature of default interest is not of a punitive nature, but rather is “to compensate for the time in which a capital, which in the opinion of the tax administration should have been located in the State coffers for the benefit of the coverage of public needs, remained in the hands of the taxpayer.”, for which it continues to state:

However, it is evident that allowing default interest to be charged until the tax procedure is finally resolved, regardless of the fact that the legal term has been exceeded, becomes an undue incentive to not resolve within said term and to do so rather in an exaggeratedly long time, because the longer the delay, the more the tax debt will increase. It is evident that this scenario is at odds with constitutional tax values and, in particular, with the fundamental rights of petition and property. The taxpayer should in no case be harmed as a consequence of the breach of the law, when this is outside his responsibility. (f.j. 59)


What does the jurisprudence indicate regarding the collection of default interest?

The TC has already had the opportunity to learn about other cases of tax protection in which the collection of late payment interest beyond the established legal term was discussed.

The first is the “Medina de Baca” case (STC Exp. No. 04082-2012-PA/TC), where the TC ordered that the calculation of the debts originating from the appellant be made without applying the rule of capitalization of interests of art. 7 of Law 27038 nor the rule for charging interest during the appeal contained in art. 6 of Legislative Decree 981.

The second case is the “Icatom” case (STC Exp. No. 04532-2013-PA/TC), in which the criteria established in the “Medina de Baca” case is extended to include legal persons as well. However, the TC establishes that this criterion is not applicable to contentious-tax proceedings that have been concluded, but only to those that are in process (including the execution phase).

The third is the “Telefónica” case (STC Exp. No. 00225-2017-PA/TC), through which the claim was declared well founded and Article 33 of the TUO of the Tax Code inapplicable with regard to default interest on the debt related to income tax for the years 2000 and 2001.

The fourth is the “Scotiabank” case (STC Exp. No. 00222-2017-PA/TC), here the TC determined that there was an equally satisfactory way to resolve the case, therefore it declared it inadmissible. It added that the appellant company prematurely resorted to constitutional justice and that it is the plaintiff herself who allowed time to pass by not activating the remedies provided by law.

Source: The Law

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