Through Decision No. 92-15-IN/21 of January 13, 2021, the Constitutional Court declared the final paragraph of Article 324 of the Organic General Procedural Code (COGEP) unconstitutional.
Article 324 of the COGEP regulates suretyships, consisting of a bond equivalent to 10% of the tax obligation, which must be submitted by the taxpayer who is challenging in court an administrative tax act that imposes an obligation to deliver. According to the COGEP, this bond is required when the suspension of the administrative act is requested while a lawsuit is pending resolution. This rule requires the tax dispute judges to order, together with the examination of the complaint’s fulfilment of filing requirements, that the taxpayer submit the bond within 25 days.
According to the final paragraph of article 324 of the COGEP, which has been declared unconstitutional, until before this ruling, if the taxpayer did not comply with the suretyship within 25 days, the judges had to consider the complaint as not filed, and, therefore, the challenged act as final, ordering the dismissal of the lawsuit.
The Constitutional Court stated in its decision that if the 10% bond has been contemplated by the Legislator within the COGEP as a mechanism to suspend the challenged administrative act, it cannot be a condition to continue with the processing of the case, since it constitutes: (i) an obstacle to access to justice by making it impossible to obtain a decision that settles the merits of the matter in dispute; and (ii) a “clear violation of the principle of free justice.”
Consequently, the Court modified the final paragraph of article 324 of the COGEP, which, as of the issuance of this decision, now reads as follows:
“… The judge shall examine the complaint’s fulfilment of the filing requirements and shall order that the bond be provided within twenty-five days; failure to do so shall not suspend the effects of the challenged act and the processing of the case shall continue.”
The decision orders the District Tax Courts, as of the issuance of this decision, to apply the decision to all the cases that have been filed or will be filed and whose processing is pending.
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