By: David Erales
During the administrative procedure, it is advisable for taxpayers to file a claim of unconstitutionality in a specific case, in order to enable the possibility of using such procedural tool in the administrative litigation process and even in cassation, a situation which, in certain cases, means the difference in the success of the taxpayer in the tax dispute.
The unconstitutionality of laws in a specific case[1] (doctrinally known as indirect unconstitutionality) is a constitutional guarantee, through which any person (individual or legal entity) involved in a judicial dispute may request constitutional control to the body hearing the dispute, so that, in a certain case, a rule is not applied, for considering that it contravenes any right or principle regulated in the Political Constitution of the Republic of Guatemala.
The aforementioned constitutional guarantee acquires a special relevance within the tax disputes, due to the fact that, on occasions, the application of a certain rule produces an effect contrary to the fundamental rights of the taxpayer and/or tax principles regulated in the constitution. Therefore, it is a tool that can be useful at the time of going to the administrative litigation process or, subsequently in cassation, so that the corresponding jurisdictional body declares the inapplicability of this rule and, therefore, the result is favorable to the taxpayer.
To this effect, it must be kept in mind that such unconstitutionality can only be resolved by a jurisdictional body, that is to say, a Court of Justice, and therefore, it will be until that moment, when the discussion of the matter is before such courts, that such action can be filed. However, within the tax disputes, if the same began with an administrative proceeding, processed and resolved by the Superintendence of Tax Administration (hereinafter SAT), there is a prerequisite to be able to file such constitutional action, which consists in pointing out the unconstitutionality in a specific case before the SAT (art. 118 of the Law of Amparo, Personal and Constitutional Exhibit).
This requirement is necessary to be able to raise the unconstitutionality in a concrete case before the courts of justice, since, if it is not done within the administrative procedure, the same will be rejected for processing. To this effect, the Constitutional Court has established legal doctrine in this sense, in which it has stated that when interpreting in an integral manner the content of the related article 118, it is concluded that the condition of viability established in the first paragraph (the indication within the administrative file) constitutes a requirement of obligatory compliance in any of the forms of raising this type of unconstitutionality, even when it is promoted as a reason for cassation. That is to say, such condition -prior denunciation- turns out to be a requirement of law, proper of the unconstitutionalities of law in a specific case in administrative matters, regardless of the form or modality in which they are promoted, so that its requirement must be met whenever it is a guarantee urged in administrative matters, regardless of the form or modality in which it is asserted -action, incident or ground of cassation-Files No. 2381-2016; No. 2778-2017; No. 4313-2017 and, No. 6477-2019.
It is to be taken into consideration that such complaint or unconstitutionality indication does not require the development of the corresponding legal argumentation as an approach of unconstitutionality in concrete case, since, the administrative body as such, is not legally empowered to declare the same, in other words, it cannot resolve on such aspect, so the taxpayer must only limit himself to make the indication in such administrative stage. On that account, it is enough to point out that the legal basis on which the adjustment or determination is formulated or on which a VAT tax credit refund, undue payment or overpayment of the tax is denied, violates the fundamental rights of the taxpayer or contravenes the tax principles regulated in the Political Constitution of the Republic.
The related Article 118 does not establish a form in which such complaint of unconstitutionality must be made; however, the Supreme Court of Justice, Civil Chamber (Exp. No. 01002-2017-00270), has established that it is not enough just to indicate that the article is unconstitutional, but that: i) it is necessary to indicate which article is being denounced as unconstitutional in the specific case; and, ii) indicate which fundamental rights or constitutional tax principles are considered to be infringed by said norm, individualizing in turn the constitutional articles where they are regulated.
Therefore, it is advisable that the unconstitutionality claim be as broad as possible, since, for the person conducting the tax defense in the administrative phase (who in many cases has no legal training), said article violates only one or another constitutional right or even none, but, for the person conducting the tax defense before the courts of justice (who must be a lawyer), there are other constitutional violations, which, for not having been pointed out in due time, can no longer be alleged within the unconstitutionality in a specific case.
[1] Article 266 of the Constitution of the Republic of Guatemala and Article 116 of the Law of Amparo, Personal Exhibition and Constitutionality establish that, in any process of any competence or jurisdiction, in any instance, including cassation, the unconstitutionality of a certain norm in a specific case may be requested, either as an action, an exception or an incident, in order to declare its inapplicability in the process.