On the eve of the employee and day of the employee, the judge gave good news to diplomats and administrative employees of the chancellors in their judicial match with the government Javier Miley. With the second decision, he retained stability, which does not allow managers to apply income tax deductions for a salary, which are accused of those who are intended abroad, in accordance with daily support expenses.
The Chamber of the V Federal Administrative Chamber rejected the appeal represented by the Government against the precaution, which suspenses the application of an income tax on “additional costs”, which receives personnel of the country’s external service intended outside the country. Thus, the Ministry of Foreign Affairs and the Customs Collection and Control Agency is refrained from holding or claiming this deduction at the specified additional, at least in accordance with the significant problem.
Undoubtedly, the resolution of 11 pages with the signing of the judge Guillermo Tracy and Pablo Fedrini, who was addressed by the chronnicler, is a favorable step for external and civilian personnel raised by the norm by maintaining taxes on the “additional cost of life” during the processing of the main trial. Nevertheless, it is clarified that this decision is made within the framework of a limited amount of knowledge about precautions, without prejudice on an essential problem, which should be solved in the final solution.
The chamber founded its decision on the probability of the law of plaintiffs and the danger in delay. He examined that the new formulation of Article 82 of the In profit tax, altered by Law No. 27.743, generates uncertainty, preventing the deduction of this additional, especially because article 86, subsection E) of the same law that allows us to withdraw similar expenses, which, as Per Diem, have not been changed. In addition, he emphasized that the previous regulation (Decree No. 862/19) allowed this deduction.
Similarly, he emphasized the food nature of the additional, the impact of which directly affects the heritage of personnel in order to establish the danger to delay the determination of the issue in the trial.
Thus, the court rejected several arguments of the applicant. Confirmed the collective legitimation of demanding associations. And this clearly made it clear that the precaution does not resolve the lower part of the issue – the main action is looking for the unconstitutionality of the decision – but only seeks to maintain the previous tax situation during the judicial application.
With this resolution, the Federal Administrative Chamber ratified the lawsuit filed by the Association of Personnel of the Diplomatic Service of the Nation (APSEN), into which the Guild of the State Association of Workers (ATE) was folded. In the appeal, legal representatives of the Government sought to dismantle the general front of Apsen and ate under the prerequisite that they represented taxpayers in completely different situations, so it cannot be confirmed that there are homogeneous individual interests that go beyond their disagreements with the norm.
Nevertheless, the chamber noted the existence of collective active legitimation, while the current associations have procedural legitimation to promote collective actions. They noted that they noted that the union organizations of the first trade union with the status of a trade union, the goals of which include the protection of the professional, economic and medical interests of its members, both individually and in the aggregate.
In this sense, they quoted the doctrine of the Supreme Court of the Judge of the Nation in the Halabi case and subsequent precedents, which allow collective actions on the rights to collective diseases related to homogeneous individual interests, when there is a general actual reason, and the statement is focused on the collective aspect of the influence of the fact.
In this case, the general actual reason is the interrogation of the validity of the articles Decrees No. 652/24 and the ability to subtract “additional life costs” upon the arrival of tax in relation to the personnel of the foreign service, which performs functions abroad presented by the current associations.
Profit tax: what does fail in favor of APSEN and ATE
In the resolution, the camera also refers to the danger in the delay in the resolution, is quite accredited due to the incidence of income tax on the “additional cost of life”, which the staff perceives abroad and, in fact, in the obvious food character of the specified additional.
At the same time, he rejected the state’s statement that the judge’s argument was dogmatic and that there was no risk of irreparable or inevitable damage, but he decided in advance that he decided in advance that he decided to solve a significant problem. In their appeal, in favor of the collection, the executive branch suggested that the dangers of a delay propose that all the rewards received as a result of work in relations of addictions, and that there was no risk of irreparability or inevitable damage.
After in the first case, the resolution on the provision of precautions of the national executive power appealed the resolution, claiming that the precaution was dictated on the basis of the principle of separation of powers, since it suspended the consequences of Law No. 27.743, the law authorized by the National Congress, which changed the Law No. 20.628 of the income tax.
According to the position of the government, the judge of the first instance did not cause devoted public interest – the inability to increase tax – and, therefore, incapable of satisfying social needs. And he even missed the treatment of significant protective proposals, such as the lack of collective active legitimation and the lack of an opportunity.
However, the camera examined that the precaution is an adequate procedural instrument that would not predict the issue of the issue and that the decision of the magistrate was made within the limited cognitive volume of precautions without releasing the final decision on the merits.
Similarly, the new decision emphasized the special constitutional protection of labor rights (Article 14 of the BIS of the National Constitution) and the food nature of the claimed right, which justifies the recognition of the legitimization of subjects to carry out collective actions.
And he explained the accreditation of probability in the law, since in the limited structure of knowledge about precautions, the current formulation of Article 82 of Law No. 20.628, modified by law No. 27.743 – leads to uncertainty in demanding organizations and those who represent.
Indeed, this rule prevents the deduction of “additional life costs”, but Article 2 of the same Law requires that the profit considered as rent should adhere to the requirements of frequency and constancy, and not every payment will be taxed in principle. The chamber emphasized that Article 86, subsection “E” of the Law No. 20.628, which considers the deduction of mobility costs, per diem and other similar compensation, was not changed by Law No. 27,743, which could withstand the general prohibition of Article 82.
At the same time, he records an interrogation of the constitutional reliability of Decree No. 652/24 by plaintiffs, while the previous regulation – Decree No. 862/19 – really allowed to subtract the “additional cost of life”.
What is additional for the cost of life
Additional, which the country’s external personnel, which performs functions abroad, is a “additional cost of life”, established in accordance with indication No. 3168/78. This amount, the amount of which is recorded through the International Standard of the United Nations and Civil Administrative Personnel of the Ministry of Foreign Affairs is also perceived when it is intended for permanent missions abroad.
The purpose of this additional is the compensation of variations that are recorded in exchange rates between foreign exchange rate and costs of costs of life costs in almost all countries of the world regarding the assets of unexplored personnel outside the country. This amount is part of the salary, is a variable and can be left without an effect or suspended for budget reasons and has an obvious food character. Before Decree No. 652/24, Decree No. 862/19 allowed to withdraw this additional income tax.
