Impuesto a los Créditos y Débitos en Cuenta Bancaria

La CSJN confirmó la determinación de oficio realizada por AFIP en cuanto entendió que el depósito en efectivo en cuenta bancaria para cancelar operaciones constituye un sistema de pagos organizado, alcanzado por el impuesto a los créditos y débitos en cuenta bancaria. En un reciente pronunciamiento de la Corte Suprema de Justicia de la Nación en los autos caratulados «Piantoni Hnos. SACIFI y A c/ Dirección General Impositiva s/ recurso directo de organismo externo», se ratificó la determinación de AFIP en relación al impuesto a los créditos y débitos por entender  que el sistema utilizado por la actora para cancelar sus deudas con un proveedor (depósito en efectivo en las cuentas de éste, de modo que el pago se efectuaba sin que Piantoni utilizara sus propias cuentas bancarias) constituía un sistema organizado de pagos en los términos de la Ley 25.413, decreto 380/01 y resolución general de AFIP 1135/2001. La Corte Suprema de Justicia de la Nación definió al sistema organizado de pagos como aquél que permita sustituir el uso de cuentas bancarias en el ejercicio de una actividad económica y que razonablemente pudiera considerarse que estuviese reemplazando una operación que no fue realizada a través de un débito o crédito en las cuentas bancarias de quien efectuó dicho movimiento. Todo ello siempre y cuando, dichos movimientos o entregas de fondos sean efectuados por cuenta propia y/o ajena en el ejercicio de actividades económicas. Este sistema fue creado por las resoluciones aludidas con la finalidad de evitar la elusión del impuesto en los términos originariamente previstos por la Ley. Adicionalmente, para darle la razón a la demandada la Corte sostuvo: • Que los elementos esenciales del tributo, su hecho imponible, los sujetos obligados, la base imponible y las exenciones han sido expresamente establecidos por una ley, en sentido formal y material, emanada del Congreso de la Nación. • Que con la disposición en cuestión no se pretende gravar cualquier movimiento de fondos, sino únicamente aquel que razonablemente pudiera considerarse que estuviese “reemplazando” una operación que no fue realizada a través de un débito o crédito en las cuentas bancarias de quien efectuó dicho movimiento.• Que la resolución general 1135/2001 de AFIP no ha modificado ninguno de los elementos esenciales del tributo creado por el legislador ni ha pretendido ampliar los supuestos comprendidos en el ordenamiento legal abarcando situaciones nuevas o distintas de las previstas en aquel. Por el contrario, mediante ella se han precisado los casos en que tienen cabida en el ordenamiento legal con la finalidad de evitar la elusión del impuesto en los términos en los que este había sido originariamente establecido por el legislador.   En base a estos argumentos, la Corte consideró que la determinación de oficio era correcta y rechazó la pretensión del contribuyente.  

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