Tuesday, September 26, 2023

Collecting the municipal patent from a passive investment company is unacceptable because it is frivolous

The Supreme Court accepted the appeal on the merits filed against the judgment handed down by the Court of Santiago, which affirmed the basic judgment resulting in a lawsuit for the collection of the municipal license fee, filed by the municipality in Lo Barnechea against an investment company.

On May 6, 2019, the Municipality sued an investment company, requesting the collection of municipal patents owed from the second half of 2008 to the first half of 2019, as stated in the debt certificate that issued by the municipal secretary.

In its defense, the executed party raises the exception of the nullity of the obligation, claiming to be a passive investment company and that it does not perform primary, secondary or tertiary activities, using the reserve principle of tax that restricts the regulation of taxes by regulatory power. He claims to perform civil activities and also alleges the absolute nullity of the executive title, because he lacks the obligation of the cause and because the municipal action violates the aforementioned principle of legal reserve, in as being in possession of a prohibited substance. As a subsidy, he revoked the exception of partial prescription, for the periods that run between July 31, 2008 and July 31, 2016, using article 2521 of the Civil Code.

The court for the first time rejected the exception of nullity and granted the exception of partial prescription, in the terms proposed by the executed party, ordering the continuation of the execution in relation to the periods after July 31, 2016, taking into account the extent -on its social. sphere and estimate that, “(…) financial intermediation corresponds to a commercial act, therefore, taxed by a municipal patent, without the civil or commercial character of the taxpayer being significant, which is reiterated in article 24 of the Decree Law No. 3063 , expressly referring to investment companies, it is apparent that they are affected by the payment of the aforementioned patent, regardless of its nature, the only exception is what is contemplated in article 27 of the aforementioned regulations”; decision confirmed by the Court of Santiago in an appeal.

Against this final decision, the murdered man filed an appeal on the merits, alleging the violation of articles 23, 24 and 26 of Law No. 3063, 2 and 12 of Supreme Decree No. Use of articles 23 and compliance with Title IV of DL No. 3,063, of 1979 and article 426 of the Code of Civil Procedure.

The appellant maintained that the magistrate assumed that the implementation of taxable activities that requested an alleged breadth of its business line, however, the plaintiff was not able to prove the existence of any taxable activity that made on his part, resolving the dispute based on the assumptions that they lack support, as well as the absence of a harmonious interpretation of the rules that he mentioned.

The highest Court allowed the appeal on the merits, after arguing that, “(…) it is clear from the first decision that only considered proved that the executed company is an investment company, without, at the same time, , it has It is possible to continue its business in a society that can be classified as primary, secondary or tertiary, an essential requirement for the obligation to pay this tax to come. Immediately then, the judgment shows that, “(…) In contrast to this, an investment company that acquires goods, only for the purposes of income, which does not involve the production of goods or the provision of services , did not perform the action taxed in article 23 .of Decree Law No. 3,063”.

The judgment concludes by saying that, “(…) as a consequence of the above, the exception of No. 14 of article 464 of the Code of Civil Procedure is rejected, which must be accepted, because the search made by municipality. The secretary is not real or effective, because the obligation recorded in it is not one of those placed in a municipal patent, since the municipalities can only collect the taxes allowed by law, a budget that, in species does not occur, leaving the municipal tax collection without reason or legal precedent that provides legal coverage for the claim.”

Based on the foregoing, the Supreme Court accepted the appeal on the merits, invalidating the appealed judgment, and in the alternative judgment, it revoked the first-degree judgment and granted an exception of nullity, annulling the claim to collect the municipal patent. , when considering that, “(…) it is obvious that, as stated by the executed party when raising the exception under examination, the obligation raised in the proceedings is frivolous, that is, it has no motivation or legal standard that provides legal coverage for its collection by the plaintiff Municipality, because it is not shown that the defendant company is subject to the payment of the tax in question.”

Nation World News Desk
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