Within the tax legal relationship, situations occur in the Tax Administration-Managed relationship where the roles are reversed, the former becoming the debtor of the taxpayer or person responsible.
This is the case of the repetition of tributes.
The repetition implies the reimbursement of monetary amounts for taxes, since the taxpayer has the conviction of compliance with the duty to support public charges.
It may happen that the taxpayer contributes amounts for taxes, (taxes, fees or contributions) that turned out not to be such, since they would not be in charge of a tax obligation after a scenario of illegality, for example, creating a credit in favor of that one.
Despite the fact that the Organic Tax Code (COT, 2001) nor the Organic Law of Municipal Public Power define what is the repetition of taxes, it is frequent to find that terms such as repetition, refund, recovery, refund, among others, are usually given similar meaning. Nor is the doctrine unambiguous on the point.
In this regard, it should be noted that the technical meaning of repetition differs from recovery, for example, since it is reimbursement for undue payment not corresponding to an obligation in charge of the taxpayer, while recovery obeys fiscal policies.
Following Juan Castillo Carvajal in his work "Repetition and Recovery of Taxes in Venezuelan Tax Law", Ediciones Lizcalibros, Caracas, 2006; repetition comprises:
- Payments made without legal norm that legitimizes them Payments made based on a legal norm that becomes improper due to subsequent circumstances (advances and withholdings) Payments made based on an administrative act of tax determination whose execution was not suspended and whose illegality was later declared by the jurisdictional body. Payments made based on a norm whose unconstitutionality has been declared by the Constitutional Chamber of the Supreme Court of Justice after the entry of the respective tax amount.
It is necessary to clarify that enrichment without cause of a civil nature is not applicable in tax matters, since it is handled with criteria other than those of Common Law; concepts such as good faith are handled in it, which is not typical of tax matters, for example.
Like any discipline of Public Law, it responds to concepts such as patrimonial responsibility of the Administration, principle of legality, among others. For this it is enough to read the constitutional precepts on Public Administration; In legislative headquarters, the Organic Law of Public Administration, the Organic Tax Code or the Organic Law of Municipal Public Power, to name a few, can be mentioned.
It is appropriate to specify that for the existence of the repetition one must be immersed in a tax obligation, which originates from the legal norm with a valid appearance that has been satisfied by the taxpayer or tax responsible.
It may be asked, - what is the legal basis for repetition?
The Organic Tax Code establishes it in its articles, making it clear that it acts as a supplementary nature of norms that establish it: ordinances or laws.
On the legitimacy to exercise it in an active way corresponds to the obligor (taxpayer, responsible); the doctrine debates on the possibility of trying it by third parties. In the passive role - for the relevant case - corresponds to the Municipal Treasury.
As in any tax obligation, the interests are part of the so-called accessories of the debt, since they have a reparatory nature, with the exception of being caused from 60 days after the petition is filed by mandate of the COT. It is debated whether only default interests are applicable, since there is patrimonial damage or, at least, decrease when the Administration has amounts of money that does not correspond to it, benefiting to the detriment of the taxpayer or person responsible.
The Organic Tax Code (COT, 2001) establishes as a premise that taxpayers or those responsible may request the restitution of what was unduly paid for taxes, interests, penalties and surcharges, provided they are not prescribed.
The repetition procedure is declarative and non-contested, since a non-appealed refund request would not proceed. It should be said that it is not of a constitutive type either, because the decision that agrees on it will generate recognition of a pre-existing right.
Regarding the time element for its exercise, it was already limited that it must be done during the time set by the COT for the prescription to operate, which this normative text sets it in four years from the first day of January of the year following the generating event that gives the right to repetition, the payment of the tax that originates the action is made or the debit balance is constituted.
Regarding the form of extinction of the obligation to repeat what was paid, the taxpayer can choose between compensation, which is a means recognized by the COT, or the assignment; However, in order for it to be exercised, the pronouncement of the Administration or the judicial body must materialize, not meaning that it is subject to an acknowledgment, but that the credits must be validated.
To enforce the repetition, a letter must be submitted to the Tax Administration, which must contain the identification of the taxpayer or person responsible, as well as those of their representative, a copy of the Tax Information Registry (RIF) format, a copy of the documentation of constitution and representation of the legal person, proof of the payment of the repeated tax, among others, so that it can form criteria and issue the corresponding decision. You can carry out all the actions for the verification, being able to reject, agree in whole or in part, leaving the recursive way of not agreeing open.
For the evidentiary aspect, the COT indicates that all means of proof are recognized, with the exception of confessional evidence.
If the lack of any collection is indicated, the provisions of the COT are applied, that is, the applicant is notified and 10 business days are set for correction.
A scenario where the figure of repetition can be applied can be in tax advances, for example, since - although they are contemplated by the ordinance - it is not less than it must comply with all the requirements established by the norm; This is based on the principles that nourish Tax Law, such as legality, patrimonial responsibility, among others, since the tax legal relationship is within an objective framework.
On this, there are judgments from both the Contentious Tax Courts and the Highest Court that have been delineating both the repetition and the recovery of taxes. An example is the one issued by the Second Court of Tax Litigation (Caracas) on January 30, 2001, case: Sucre Municipality of Miranda State.
