Fourth category income tax payrolls exceed approximately $404,000 (as of January 2023) in such a way as to clearly violate the limit established by the Supreme Court which consider confiscatory any privilege affecting more than 33% of remuneration, in flagrant violation of the right to property, the principle of fiscal fairness and the principle of equality on equal terms.
Strictly speaking, the fundamental question lies in the conception that wages are profits when it concerns a food benefit, that is, fundamental for subsistence, and if taxes can be fixed, when its use is not to amass savings, but to spend on food, drink, medicines and basic expenses (see Encyclicals Mater et Magistra ” and “Laborem Exercens”).
The Supreme Court has already ruled in this regard with regard to the TFR when the limit is confiscatory (“Vizotti c/AMSA”, 14-1-2004) and in the amount of the severance pay (“Caso Negri”, 15-6-2014, and cases “Cuevas” -2010- and “De Lorenzo” -2009-) where it was considered that the Irpef does not reach the TFR. In all cases the amounts were not useful because the periodicity had expired and the source had expired, according to the tax legislation.
The Court has used arguments compatible with our problem in the judgments in favor of the non-application of the pension tax, (CSJN, 26/03/2019, “García, María Isabel v. AFIP s/ action merely declaring unconstitutionality”).
Curiously, if the wages are less than $410,000 the worker does not have withholding taxBut If you raise, say, $600,000, almost the entire difference is taken by income tax and social security contributions. The executive has increased the previous value by 78% on an annual basis, unaware that inflation is around 100% taking into account the RIPTE (average taxable remuneration of stable workers) imposed by law.
The fourth category income tax was instituted to tax the salaries and incomes of those who work in a dependent relationship, which added to the social security contributions destined for social security and union withholdings, reduce the person’s gross income to unfeasible and unjust levels.
As far as collective bargaining is concerned, in recent years there has been an escalation of union demands, within wage negotiations, which have led companies to demand that they assume some sort of compensation that would reduce the impact of the tax on pocket of workers. workers. Strictly speaking, during 2021 and 2022, numerous presentations were made before both chambers of the National Congress, since it is the Parliament that must set reasonable criteria, fulfilling its non-delegable mandate to guarantee the fundamental rights enshrined in the National constitution.
In that context, it does not seem reasonable for employers to charge a fee which in accordance with current legislation, is the responsibility of each worker. However, and while there are a number of initiatives within Congress, there has so far been no logical response.
Interestingly, the idea of creating a payment to offset withholdings on workers’ earnings is clearly contingent and illegal. In the first place, taxes are instituted, repealed or modified only by an act of Parliament, and the Executive Branch does not have the powers to produce substantial modifications.
Thus, the setting of an amount not reached by social security contributions is contemplated by law 24.241 articles 6 and 7, when a single and extraordinary payment premium is paid, however, this statutory exception has no similar rule regarding income taxso that a special framework should be generated, and without legal support, so that the sum is not included in the withholding calculation.
The Supreme Court in the case “González c/Polimat” (2010) established that the Executive Power, even with a decree of necessity and urgency, does not have the power to modify the juridical nature of a benefit, to the detriment of international treaties, of of the national Constitution and of the substantive norms in force.
Another resource consists in carrying out the “collection” consisting in establishing a higher amount so that, by carrying out the withholding tax, the net commitment is obtained. This system significantly increases the cost to the company, which makes it impractical.
In short, the only solution would be for the National Congress to raise the exemption with a substantial regulation, to the point that it reaches, as was thought when this tax was created, only for the highest income from activities … in a relationship of dependence , and in no case did it reach the lower and middle strata of the scale.
In Congress, the reluctance to intervene reaches the ruling party as well as the opposition because one of the serious problems facing any government is the fiscal deficit, and in a country like ours with record high inflation, any measure that reduces revenue seems contraindicated with respect to the problem of macroeconomics, where for now the interest of the citizens, who are the ones who suffer the damage, is left aside.
The Supreme Court, within the framework of the division of powers in a representative and republican democracy which prides itself on it, It should be the power of the State which, within the scenario described, questions the constitutionality of the rules applicable for being confiscatory, for not respecting the right to property, the inviolability of wages, nor the principles of equality under equal circumstances, nor the constitutional mandate referring to fiscal fairness.
NS
Source: Clarin
