Por DR. EZEQUIEL MALTZ
Se realiza el comentario de un pronunciamiento reciente del Juzgado Contencioso Administrativo N° 3 de La Plata en la causa “DI PIZIO GUSTAVO ALBERTO C/ ARBA S/ PRETENSION ANULATORIA – OTROS JUICIOS”, de fecha 23 de agosto de 2021, donde se hizo lugar a la demanda interpuesta , y se revocó la denominada liquidación express de ingresos brutos realizada por el fisco local respecto un contribuyente que había omitido comunicar el cese de actividad.
El Código Fiscal de la Provincia de Buenos Aires dispone en su artículo 58 que para los casos de contribuyentes o responsables que liquiden el impuesto sobre la base de declaraciones juradas y omitan la presentación de las mismas por uno o más anticipos fiscales, cuando la Autoridad de Aplicación conozca por declaraciones o determinaciones de oficio, la medida en que les ha correspondido tributar en anticipos anteriores, podrá requerirles por vía de apremio el pago a cuenta del gravamen que en definitiva les sea debido abonar, de una suma equivalente a tantas veces el gravamen liquidado en la última oportunidad declarada o determinada, cuantos sean los anticipos por los cuales dejaron de presentar declaraciones.
Por su parte, el artículo 47 del Código Fiscal establece que para determinar la cuantía de las ventas, prestaciones de servicios u operaciones, en los casos de contribuyentes o responsables que no hubiesen presentado declaraciones juradas o abonado la liquidación practicada por la Autoridad de Aplicación se podrá tomar como presunción entre otras: “Los importes correspondientes a ventas netas declaradas en el impuesto al Valor Agregado por los años no prescriptos, constituyen monto de ingreso gravado del impuesto sobre los Ingresos Brutos, debiéndose considerar las declaraciones del referido impuesto nacional que se correspondan con el anticipo del tributo provincial objeto de determinación o en su defecto, la anterior o posterior más próxima”.
El caso en comentarios se trató de un contribuyente que ejerció su actividad de forma íntegra en la CABA, sin embargo por un error formal de muchos años atrás nunca término de dar su baja en la Provincia de Buenos Aires estando inscripto como contribuyente puro en ARBA. Ello explica la falta de presentación de declaraciones juradas.
ARBA conociendo las declaraciones juradas de IVA, tomó como presunción las ventas declaradas en el impuesto nacional, sin percatarse tampoco que el sujeto estaba inscripto en la CABA tributando ingresos brutos en esa jurisdicción.
Con el apremio iniciado en su contra, se interpuso una demanda contenciosa por parte del contribuyente impugnando la liquidación, lo que originó la sentencia favorable para éste.
En el pronunciamiento se estableció con claridad que el procedimiento determinativo, conocido como “liquidación express”, ha sido objetado en numerosas oportunidades por cuanto permite a la Autoridad Tributaria arribar a una deuda sin la debida audiencia y oportunidad de prueba al interesado, tal como lo prevé el procedimiento de determinación de oficio, el cual supone el dictado de una resolución de inicio, con los debidos fundamentos, que se notificará al contribuyente a fin de que éste pueda presentar descargo, ofrecer y producir prueba; para luego dictarse la resolución final, haciendo lugar o rechazando los agravios vertidos por aquél, brindando de esta manera al contribuyente la posibilidad de articular recurso de reconsideración y/o de apelación.
El Juez indicó que en el caso de autos, se hizo uso, sin más, de la presunción establecida en el art. 47 inc 7° del Código Fiscal, omitiendo analizar en qué medida realmente la actividad ejercida por el Sr. Di Pizio se encontraba alcanzada por el Impuesto sobre los Ingresos Brutos con la debida participación de aquél en tal análisis.
Por otra parte consideró que abundan, pues, mayores razones para hacer lugar a la demanda instaurada, la ausencia de sujeción a la regla constitucional del debido proceso, principio fundante de todo nuestro sistema procesal, que se erige en un vicio insanable, de cualquier manera y en cualquier instancia.
Agregó que lo que se reputa ilegítimo en autos es la coactiva intimación al cumplimiento tributario, concluida en la emisión de un recupero coactivo de las sumas liquidadas, sin transitar un trámite adecuado de verificación tributaria, el cual contemple la debida y suficiente intervención previa del interesado contribuyente.
Los argumentos de la sentencia creemos que son totalmente acertados. No es factible obligar a un contribuyente a que abone una deuda inexistente por un mero error formal, sin su debida intervención.
Finalmente consideramos que estos mecanismos de liquidación abreviada pueden encontrarse en pugna con la Ley de Coparticipación Federal de Impuestos y el Convenio Multilateral.
Provinciales y Municipales. Ingresos brutos. Liquidación express. Ventas declaradas en el IVA. Cese de actividad. Omisión de comunicación. Derecho de defensa. Nulidad del procedimiento.
Tribunal: Juzgado Contencioso Administrativo N° 3 de La Plata
Autos: “DI PIZIO GUSTAVO ALBERTO C/ ARBA S/ PRETENSION ANULATORIA – OTROS JUICIOS”
Fecha: 23/08/2021
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