The tax administration argues that its right of defense was not respected and that the Court’s criteria that established how binding precedents should be created were ignored.
Sunat filed a claim for annulment against the recent ruling issued by the Constitutional Court (TC) through which it created a new binding precedent and indicated that tax debts did not generate default interest if the delay that led to the generation of such interest It was attributable to Sunat itself, a precedent that would be causing a number of companies to stop paying more than S/12 billion, according to the same entity.
The Sunat bases its claim on the fact that “due process” would have been violated, its right to defense, constitutional precedents and other aspects of a more political nature.
Requirements to issue a precedent
According to the lawsuit, the Court would have violated “the constitutional parameters that govern the issuance of a new binding precedent.” In other words, the Sunat alleges that the formal issues related to the creation of new mandatory compliance criteria would not have been respected.
According to the Sunat, the TC had already indicated that to create a binding precedent, it must “be necessary for the solution of the case raised” and cannot be “under the pretext of solving a case.”
The Sunat argues that the TC’s decision was not necessary in the resolved case since, in this case, the taxpayer was not given the reason, but his claim was declared inadmissible, so there was no need to issue the decision made, since it did not affect him.
In addition, the Sunat argues that “binding precedents must be issued within a” decision of the Constitutional Court with res judicata authority. Given that the ruling declared the amparo claim inadmissible, it would not have the quality of “res judicata”, so the ruling would not observe the formal requirements to be a binding precedent.
However, Walker Villanueva, partner of the PPU study, stresses that the TC had already indicated that precedents could be created even if the sentences are not res judicata.
In this regard, the Constitutional Court previously indicated that “exceptionally (…) it is possible to establish a precedent in a sentence in which (…) it corresponds to declare the inadmissibility of the claim, provided that this has the objective of guaranteeing the due protection of fundamental rights in the ordinary processes”.
In other words, a precedent can be created even in cases that ended in the declaration of inadmissibility of the claim if this helps to protect fundamental rights.
Pablo León, a senior associate at the Rebaza studio, points out that despite the fact that Sunat seems to want to argue that the Constitutional Court made an omission and did not follow previously established precedents, the reality of the facts is that it did take them into consideration.
“In the same sentence that contains the binding precedent, the Court mentions the criteria to which the Sunat refers but decides, voluntarily, to deviate from them in an exceptional way,” he emphasizes in this regard.
In this sense, he does not consider that Sunat’s petition is protected.
Affectation of the right of defense
According to Sunat’s claim, in the original process that led to the controversial sentence, the plaintiff did not ask for “anything more” than the fact that default interest accrued after the legal term to resolve is not applied. He adds that the plaintiff company “never requested that the non-application of the tax rule (…) not apply to other tax debtors, including large companies.”
In this sense, the Sunat argues that, since the possibility of this criterion being applied in a general way was never discussed, it never had “the opportunity to allege, prove and, in general, exercise [its] defense with respect to it”, violating your right of defense.
Villanueva points out, however, that this argument does not have much support, in his opinion.
In this regard, León comments that Sunat’s argument lacks technical support, since it is not possible for the plaintiff to file a claim for protection of the rights of all taxpayers.
“The Sunat points out that the taxpayer did not request the non-application of the rule or the general non-application of it, but the plaintiff cannot request this, so the argument is fallacious. In addition, the Sunat knows that one of the possible results of a request for amparo is the non-application of the norm ”, he emphasizes.
The Sunat also argued that the Court’s decision “directly harms the population”, since the State would stop collecting S/12 billion, which could have been used on issues related to education, health, housing, work and security. , among others.
In the lawsuit, the Sunat argues that the private use the amount of the debt to generate more money or economic benefit for their own benefit, while the State was harmed by not having the resources in time to meet the basic needs of the population.
Additionally, the Sunat presents a number of arguments related to the lack of analysis by the TC of the implication of the sentence that have a more political than legal quality.