The first thing that should be defined is - as with alcohol and its species - it is a national competition.
In effect, the Constitution of the Bolivarian Republic of Venezuela (CRBV, 1999), when regulating national competences, establishes that it corresponds to the legislation on cigarettes and other tobacco manufactures. To this is added that the National Assembly is responsible for legislating on matters of national competence.
In this regard, through the so-called enabling law granted to the President of the Republic whose validity expired in 2014, the existing legislation on tobacco was modified; it is replaced with another Decree with the rank, value and force of law seven years later.
Although the word "reserve" was not used in this legal text - as happened in the case of alcohol - an explanation must be made, since the tax on tobacco, cigarettes, stings and other derivatives will be taxed according to the norm object of these lines.
This does not mean that the national level holds exclusivity in the matter; This leads to touching aspects such as the regulatory and tax authority.
What is meant is that the National Power possesses, by constitutional assignment, the regulatory regime or framework, which means that states and municipalities cannot dictate norms that invade the powers of the former, such as, for example, empowering an individual in telecommunications matters or set up a customs office.
However, this does not mean that the municipality is prevented from exercising its powers in areas such as urban planning, taxation, urban land transit, among others, which also come from the rules of the Magna Carta and are developed with legislative activity, whether national or local.
It is pertinent - at this point - to remember the notions of the Organic Law of Municipal Public Power (LOPPM, 2010) about its own, concurrent, decentralized and delegated powers.
In this regard, two sentences handed down by the Supreme Court of Justice, in the Constitutional Chamber, can be cited; One refers to a cell phone company and, the other, to a constitutional interpretation requested by the Simón Bolívar Municipality of the State of Zulia, dated April 4, 2004, clarifying in this the exercise of tax power in a spatial area such as the Lake of Maracaibo in which several local jurisdictions converge, just as there are national competencies established by various legal instruments.
This is linked to autonomy, which has roots in the Constitution of the Bolivarian Republic of Venezuela (1999), developed - among other legal instruments - by the LOPPM.
The core point is that the municipality should not attempt to regulate aspects of production, export, import of tobacco or its derivatives. What should not be neglected is that the former has powers in terms of taxation over this economic sector.
See with these examples.
The municipality has assigned taxes such as the Tax on Economic Activities, Commerce and Services (ISAE), which regulates the exercise of a lucrative activity (commerce) within its territory. This is complemented with the provisions of the Venezuelan Commercial Code (1955).
Another case is the Urban Property Tax, popularly known as the right of front, which falls on any person who has property or other real property rights, related to urban real estate located in the municipal jurisdiction in question or the beneficiaries of administrative concessions about those same goods.
A third municipal court tax is the Tax on Advertising and Commercial Propaganda that is levied on any notice, advertisement or image that for advertising purposes is displayed, projected or installed in property of the municipal public domain or in privately owned real estate or that is distributed in a manner printed on the public highway, as long as they are visible to the public or are transported by vehicle, within the respective jurisdiction. Although tobacco has limitations in terms of advertising and propaganda, it does not mean that it is not advertised in other media, as is the case with digital ones.
A fourth tax would be the one referred to Vehicles; consists of taxing the property of mechanical traction vehicles, whatever their class or category and they are owned by a resident natural person or a legal person domiciled in the respective municipality.
The same would be the case of the tax rates and contributions paid by the municipality.
This allows us to remember that there are different tax sources that the legislator uses to tax taxpayers' enrichments without implying unconstitutionality or illegality.
This can be clarified with the following example.
The Value Added Tax (VAT) (national) is totally different from the tax on economic activities, which is local. Not because of the territorial division, but because of the taxable event.
All tax regulations have to indicate what is the generating or taxable event on which they will tax the administered; otherwise, it could be provided for the exercise or filing of judicial resources, without taking into account the issue of the attack on economic and legal security, for example.
Following the author Héctor Villegas in his well-known work “Course on Finance, Financial and Tax Law”, it is the hypothetical and conditioning legal budget whose figuration, given place and time with respect to a person, gives rise to the State claiming a tribute.
In this regard, the work of Dino Jarach can also be consulted as a foreign doctrine.
As in all tax matters, the provisions of the Organic Tax Code are applicable, which was also affected by the enabling issue; of this apply - for example - the prescription, formal duties, taxable event, tax administration, procedures, tax receipt, among others.
According to the Wikipedia portal, the structural core of the taxable event, common in all cases, is based on the premise of the existence of a specific manifestation of taxable capacity, determined territorially and temporarily with precision. The law - ordinance in the municipal case - has great freedom of maneuver to determine the structure of the taxable event, being able to contemplate the classification of any of the existing manifestations of taxable capacity; instantaneous or given facts during a specified period of time; or goods or services produced within the territory of the State or outside it.
Do not forget, the country is built from its municipalities.
