08/01/2020 - 13:06
Based on the jurisprudence of the Supreme Court, in a recent ruling of July 30, the Moreno Federal Justice declared unconstitutional the application of the Income tax on the assets of a retired woman , regardless of her age or vulnerable situation. It was in the cause "Morales, Mirta Viviana against AFIP".
Thus, the Justice ordered the AFIP to communicate to the Social Welfare Institute of the Province of Buenos Aires, “that it must abstain immediately from making and / or admitting discounts and / or withholdings for income tax in the pension fund. until the National Congress legislates on the point . Likewise, she must reimburse the sums withheld in such concept from the filing of the lawsuit until the present judgment becomes firm ”.
In the same sense, other courts, such as the Federal Chamber of General Roca, Chamber V of the National Court of Appeals in Federal Administrative Disputes and Chamber II of the Federal Court of Appeals of La Plata, also ruled recently. last in a failure to reach all retirees of the provincial judiciary because it was brought by the "Asociación Judicial Bonaerense s / Amparo".
It is calculated that 300,000 retirees and pensioners, including the provincial ones, are discounted Earnings because they earn above the non-taxable minimum of $ 101,184, equivalent to six gross minimum assets.
In the "Morales, Viviana" case, when answering the lawsuit, the AFIP objected with the argument that "neither age nor state of health" nor having - above 6 minimum assets - indicate that Morales is in a situation of vulnerability, and that the retention of earnings is not confiscatory.
As stated in the judgment, “during the twelve months prior to the filing of the action, withholdings for Income Tax have been made in the month of December / 2019 (for) the amount of $ 849.79; in January / 2020 the sum of $ 648.20; in February / 2020 the sum of $ 2,779.40; in March / 2020 the sum of $ 4,814.39; in April / 2020 the sum of $ 2,629.15; and in May / 2020 the sum of $ 2,629.13 ”.
However, the Court considered that although Morales "does not register a situation of greater vulnerability with respect to the rest of the class or category of retirees, in the case of" García, María Isabel c / AFIP s / action merely declaring unconstitutionality ", of March 2019 and that Clarín reported extensively, the Supreme Court stated that the National Congress should "regulate and legislate" on the differences in the application of Earnings on the members of the fourth category, taking into account the special situation of retirees.
Consequently, the Federal Court of Moreno held that “until this happens, the application of the aforementioned norm becomes unconstitutional and unreasonable because it affects the principle of equality within the parameters indicated by our highest court. To reach a contrary conclusion would violate the constitutional principle of equality before the law contemplated in article 16 of the National Constitution ”.
The professor and tax attorney, Enrique Condorelli, told Clarín that "there is a debate in federal courts about the scope and interpretation of the Court's ruling in the" García "case. One line maintains that it would only apply to retirees who have a disease problem or advanced age, while another line of judges understands that the income tax on retirement is directly unconstitutional , a position that is best adapted to the fundamentals. of the Court. Especially after the antecedent "Godoy, Ramón of 05/07/2019 where the spectrum was extended to other retired people regardless of their health or age."
In addition, added Condorelli, the Court left firm judgments of various Chambers that had declared the retention of earnings unconstitutional simply because it was a retired person, regardless of the plaintiff's illness or advanced age.