5 June 2023

The Federal Court suspended the payment of the extraordinary advance provided for by General Resolution (AFIP) No. 5248

Pérez Alati, Grondona, Benites & Arntsen represented an energy company  in an action  against the Federal Tax Authority (“AFIP”) in order to challenge the constitutionality of General Resolution (AFIP) No. 5,248 that established an extraordinary advance payment on account of the corporate income tax, which in the case of the plaintiff, amounted to a very significant sum. In the context of that action, the company requested and obtained a preliminary injunction suspending the effects of the aforementioned General Resolution, preventing AFIP from collecting the advance payment or applying other measures aimed at ensuring its collection while the injunction is in force. 

In this case, the company claims the illegitimacy of the extraordinary advance payment in a context in which it accumulates large credit balances that could not be used in the tax return for the period 2022 (because it showed $0 tax), nor in future years (due to the financial situation of the company), all of which results in a violation of the rights and guarantees provided for in the National Constitution. In this context, the court considered that the right invoked by the plaintiff is colorable and justifies the granting of the interim injunction.

Although the injunction was appealed by the AFIP, the judge granted the remedy without suspending its effects, declaring the unconstitutionality of article 13, section 3 of Law 26,854 on Preliminary Injunctions against the State insofar as it provides for the suspensive effect of appeals of preliminary injunctions, on the grounds that this legal provision distorts the ultimate purpose of the preliminary injunction, which is to avoid the frustration of the plaintiff's rights, thus rendering the decision ineffective.

Pérez Alati, Grondona, Benites & Arntsen 

Partners Manuel Benites, Luis Marcelo Núñez and Facundo Fernández Santos and associate María Florencia González Klebs

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