On June 9, the Constitutional Court, also known as Sala IV, announced the elimination of a paragraph from the Code of Tax Norms and Procedures (CNPT), which in turn raised several questions regarding the public’s handling of the list of companies in arrears with the Ministry of Finance.
Although the full ruling has not yet been made public, and tax attorneys are urging calm to first understand the scope of the resolution, they also acknowledge some uncertainty on the matter.
The fifth paragraph of Article 18 bis was the one annulled by the judges.
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Essentially, it was a legal directive that would allow the public to know the names and amounts on the list of delinquent companies with the tax administration until due process was completed and a final judgment was issued.
With the change, all this information could be accessed regardless of whether there are legal claims from those affected by disputes with the Treasury.
“The Court has ruled that this provision of the Code is unconstitutional; therefore, this rule has been removed from our legal system. The elimination of this restriction would allow any person, following the regular procedures, to request information on any tax debt that the Tax Administration intends to impute to a taxpayer (whether genuine or not), regardless of the status of that alleged debt,” said Adolfo Sanabria, a tax attorney at Consortium Legal.
Thus, the advance disclosure of delinquency could lead to: exclusion of taxpayers from public procurement processes; pressure to pay non-final debts, avoiding being listed as delinquent; and also government costs for interest on refunds if the Court revokes tax adjustments.
The claim was part of a constitutional action filed by ANEP.
Call for calm
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The ruling does not mean that tax secrecy has been eliminated overnight.
Grettel Rodríguez, legal manager at Grant Thornton, indicated that with the current vote, it is possible to question whether information about delinquency could be disclosed even before the debt became final.
However, she clarified that the key issue is when the debt falls into the delinquency category, since “if the debt cannot be collected, it cannot become delinquent.”
In this sense, several provisions in the tax code clearly define when a delinquency occurs.
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First, Article 40 establishes that obligations arising from a resolution must be paid within 30 days of the date it was notified; that is, after the appeal before the Administrative Tax
Meanwhile, Article 80 of the CNPT states that late payment interest must be paid 15 days after the 30-day payment period has expired, while Article 192 of the same code warns that it is not possible to certify the existence of a tax debt for enforced collection until the Administrative Tax Court issues a ruling or finalizes the resolution.
“Thus, if a taxpayer only becomes delinquent when the resolution establishing the additional fee becomes final and the deadline for payment has passed, in practice it would not be possible to provide information about a taxpayer who is delinquent even after the administrative procedure has concluded, since at that point they cannot be considered delinquent,” the expert explained.
In any case, all tax experts emphasize the need to await the full ruling of the Sala IV and thus understand the full scope of the resolution.
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