La Cámara en lo CAyT de la C.A.B.A. confirmó el rechazo de una ejecución fiscal por inhabilidad de título

SÍNTESIS.- En el caso, corresponde confirmar la sentencia de grado, en cuanto hizo lugar a la excepción de inhabilidad de título opuesta por el actor y rechazó la ejecución fiscal.
En efecto, de acuerdo a la boleta de deuda, el reclamo de la deuda obedece a la falta de presentación de declaraciones juradas del Impuesto sobre los Ingresos Brutos por aplicación del artículo 192 del Código Fiscal (ley 4807).
Así las cosas y en lo que importa a la defensa a tratar, si bien es cierto que la excepción de inhabilidad de título procede, en principio, sólo cuando el certificado de deuda –base de la ejecución– adolece de vicios extrínsecos, no lo es menos que en el marco de las ejecuciones fiscales permite que se verifiquen cuestiones relativas –por ejemplo- a la exigibilidad de la deuda.
Ello así por cuanto los tribunales están obligados a verificar si se encuentran cumplidos los presupuestos procesales que hagan, “prima facie”, viable dicha ejecución. Es preciso recordar que la excepción de inhabilidad de título es procedente si habiéndose subordinado la vía de apremio a una condición, aquella no se hubiera cumplido.
Así, la excepción de inhabilidad de título procede en el caso en que no se hubieran cumplido los trámites administrativos exigidos a fin de que el contribuyente del Impuesto sobre los Ingresos Brutos regularice su situación impositiva dentro del término que el Código Fiscal disponga. Dicho trámite consiste en una intimación administrativa que se efectúa al contribuyente a su domicilio fiscal, en la cual se le indica las obligaciones pendientes de pago que tiene y que, en caso de incumplir en un término específico, el Gobierno de la Ciudad de Buenos Aires se encuentra habilitado para confeccionar boleta de deuda a fin de iniciar la correspondiente ejecución fiscal.
Debe tenerse presente que la inobservancia del requisito de emplazamiento y la omisión en la presentación de aquella por parte del actor ponen de manifiesto que el derecho de defensa del contribuyente se vio afectado.

GCBA c/ Sero Montero Julian Diego, Cámara de Apelaciones Contencioso, Administrativo y Tributario, 16/06/17

Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires

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