«Einaudi, Sergio c/ Dirección General Impositiva s/ nueva reglamentación», C.S.J.N., sent. del 16/09/14

La Corte Suprema declaró mal concedido el recurso ordinario de apelación, respecto de la sentencia de la Sala II de la Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal que revocó la sentencia del Tribunal Fiscal de la Nación desestimando la excepción de nulidad planteada por el contribuyente resuelta como de previo y especial pronunciamiento y ordenando la devolución de los autos para que sean resueltas las demás cuestiones planteadas.

Para así resolver entendió que la apelada no se trataba de una sentencia definitiva según lo dispuesto por el art. 24, inc. 6°, apartado a, del decreto-ley 1285/58.

Expresó que el recurso ordinario de apelación funciona restrictivamente, solo respecto de las sentencias definitivas, entendidas como tales a las que ponen fin al juicio o impiden su continuación, privando al interesado de los medios legales para la tutela de su derecho, regla a la que no hace excepción la circunstancia de invocarse un gravamen irreparable. Agregó que para reconocer la calidad de sentencia definitiva a las decisiones impugnadas mediante el recurso ordinario de apelación, el criterio resulta más estricto que el admitido en el ámbito del recurso establecido por el art. 14 de la ley 48.

La Corte determinó que la decisión apelada no reviste el carácter de sentencia definitiva conforme los lineamientos expuestos. En efecto, señaló que el pronunciamiento apelado no hizo lugar a la excepción de nulidad opuesta por la actora y, en consecuencia, dispuso que se devolviesen las actuaciones al Tribunal Fiscal a fin de que éste se expidiera sobre las restantes cuestiones planteadas por el impugnante. De lo expuesto resulta claro que no se trata de una resolución que haya puesto fin al pleito o que impida su continuación, pues el gravamen del recurrente puede disiparse con la ulterior sentencia definitiva que se dicte en la causa.

Por otra parte la Corte hizo un desarrollo acerca del requisito que concierne al contenido económico del asunto que se pretende someter a conocimiento del Tribunal y que debe también existir a fin de que sea concedido el recurso ordinario, declarando en el decisorio que la atribución conferida al Tribunal Superior por el art. 4° de la ley 21.708 se encuentra vigente.

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33 comentarios de “«Einaudi, Sergio c/ Dirección General Impositiva s/ nueva reglamentación», C.S.J.N., sent. del 16/09/14

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