Municipal Taxes. Powers, Limits, and the Fee as a Type of Tax in Light of Legal Doctrine and the Jurisprudence of the National Supreme Court of Justice

Abstract

This article addresses the issue of the taxing powers of Argentine municipalities, a sphere in which the guarantee of autonomy enshrined in Article 123 of the National Constitution coexists with an extensive network of limitations derived from intrafederal law. A historical review is conducted on the doctrinal and jurisprudential evolution regarding the autarkic or autonomous nature of municipalities, centering on the ‘Rivademar’ case (1989) and the 1994 constitutional reform. Next, the limits on municipal taxing power emerging from the National Constitution, provincial constitutions, the Federal Tax Co-participation Law (No. 23,548), Article 35 of the Multilateral Agreement of 08/18/1977, and the fiscal pacts signed by the provinces are examined. The paper then delves into the fee (tasa) as the only category of tribute that, in practice, remains available to municipalities, analyzing its essential characteristics, the requirement of an effective, individualized, and concrete provision of the service, the reasonableness between cost and amount, and its link to the ability-to-pay principle. It examines the precedents ‘Laboratorios Raffo’, ‘YPF v. Concepción del Uruguay’, and ‘Esso Petrolera v. Municipalidad de Quilmes’, including the Supreme Court’s final judgment of September 2, 2021. Finally, it incorporates the analysis of the precedent ‘Gasnor SA v. Municipalidad de La Banda’ (CSJN, 10/07/2021, Fallos 344:2728), which reaffirms the doctrine on the effective provision of the service and the burden of proof resting on the municipality, thereby completing the current jurisprudential framework on the challenges of Argentine fiscal federalism.