«Ferretti, Félix Eduardo c/ AFIP-DGI», C.S.J.N., sentencia del 10/03/15
SUMARIO.- La AFIP determinó de oficio la obligación tributaria sobre el Impuesto al Valor Agregado impugnando el crédito fiscal computado en las declaraciones juradas del contribuyente por considerar que los proveedores que surgían de la facturación examinada no habían realizado las operaciones de venta allí efectuadas. Por otra parte consideró que los débitos fiscales y las retenciones consignados en las declaraciones resultaban inferiores y superiores respectivamente a los montos a considerar. Asimismo le aplicó una multa en virtud de los arts. 46 y 47, inc. a, b y c de la ley 11.683 y modif.
El Tribunal Fiscal de la Nación revocó parcialmente la determinación tributaria respecto a la impugnación de los proveedores dejando sin efecto la multa impuesta y confirmó lo atinente a los restantes aspectos del ajuste.
La Sala III de la Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal, confirmó parcialmente la sentencia del Tribunal Fiscal teniendo por válidas las conclusiones de este organismo jurisdiccional respecto de la improcedencia de la determinación tributaria en lo referente a la impugnación de las operaciones de venta atribuidas a los proveedores del contribuyente. Al respecto señaló que las facturas aludidas tenían aptitud para generar el crédito fiscal impugnado porque del peritaje contable surgía que los mencionados instrumentos “cumplen con la normativa en vigencia al momento de su emisión” y porque el ente recaudador no había rebatido la afirmación del Tribunal Fiscal en cuanto a la efectiva localización de las imprentas que figuraban al pie de las facturas examinadas, las cuales habrían confirmado que emitieron los formularios utilizados por los tres proveedores cuestionados.
La Cámara recalificó la conducta del contribuyente, respecto a los restantes aspectos del ajuste, en la infracción por omisión contemplada en el art. 45 de la ley 11.683.
La Corte Suprema de Justicia de la Nación revocó la sentencia apelada y confirmó la resolución del ente recaudador en cuanto determinó la obligación tributaria con base en la impugnación a los proveedores, aplicó la multa del art. 46 y liquidó intereses.
Fundamentos de la Corte
En primer lugar resaltó que la sentencia del Tribunal Fiscal ha efectuado un examen notoriamente superficial de los fundamentos de la pretensión del organismo recaudador y revela graves deficiencias en la valoración de las pruebas reunidas en el proceso, lo que imponía a la Cámara la revisión de lo decidido apartándose de lo prescripto por el art. 86, inc. b) de la ley 11.683.
En segundo lugar manifestó que el organismo recaudador impugnó los créditos fiscales por considerar que las facturas de venta emitidas por los proveedores involucradas resultaban apócrifas toda vez que aquellos no habían perfeccionado los hechos imponibles que emergían de aquellas. En ese aspecto, la ley del impuesto bajo análisis subordina el derecho al cómputo del crédito fiscal en el IVA, a dicha circunstancia, es decir, a que el hecho imponible se haya perfeccionado respecto de –en este caso- los vendedores de los bienes, extremo que no ha logrado acreditar el contribuyente.
Por último sostuvo que corresponde hacer lugar al agravio del ente fiscal en cuanto señala que si bien los proveedores cuestionados admiten haber emitido las facturas y cobrado los importes de éstas mediante cheques no a la orden emitidos por el actor, niegan haber sido en la realidad de los hechos, los vendedores de los materiales que se consignan en aquellas –circunstancia que, aclara “quedó debidamente demostrada en la causa (tanto en la instancia administrativa, como en los testimonios brindados ante el Tribunal Fiscal)”.
Por tanto, en este caso, si bien las facturas son auténticas y fueron efectuadas por los proveedores referidos, devinieron en apócrifas por no ser los mismos los que realizaron las operaciones por ellas descriptas, no dando lugar al cobro del crédito fiscal impugnado.
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The fresh new Zune browser is surprisingly constructive, yet not as beneficial as the iPod’s. It will work very well, but is not as fast as Safari, and includes a clunkier interface. If you often application upon applying the internet browser that is not an issue, yet if you are coming up with toward examine the internet alot against your PMP then the iPod’s bigger screen and far better browser may be critical.
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