SÍNTESIS.- En el caso, corresponde revocar la resolución de grado, y en consecuencia, establecer que no deben integrar los intereses la base regulatoria de los honorarios profesionales.
Al respecto, cabe recordar que, de acuerdo a la tesitura de esta sala (en su composición anterior), «in re» “GCBA c/ Sívori, Walter Luis s/ej. fisc.-plan de facilidades”, EJF 671.297, del 08/02/07, coincidente con la expuesta por la sala I del fuero en el precedente “GCBA c/ Sodano, Gabriel Alberto s/ejecución fiscal”, EJF 95617/0, del 16/08/06, los intereses integraban la base regulatoria.
Ello no obstante, cabe precisar que, el objeto del presente caso, fue dejar sin efecto las intimaciones de pago cursadas a la actora. De modo tal que, al prosperar la demanda, quedó sin efecto el pago del gravamen y, en síntesis, se rechazó su cobro.
Tal situación resulta análoga a la referida en el artículo 24 de la Ley N° 5134 en cuanto allí se estableció que “… [c]uando fuere íntegramente desestimada la demanda o la reconvención, se tendrá como valor del pleito el importe de la misma, actualizado al momento de la sentencia, si ello fuere pertinente, disminuido en un cincuenta por ciento” (art. 24, Ley 5134, en su parte pertinente). Ello teniendo en cuenta, como se ha señalado, que en los presentes actuados, al hacerse lugar a la demanda quedó sin efecto la persecución del importe.
A mayor abundamiento, cabe destacar que para supuestos como el de autos, eventualmente podría corresponder la actualización de la suma reclamada en la demanda (conforme el alcance ahí establecido y sin perjuicio de lo que pudiera entenderse respecto de la prohibición de indexar determinada en la Ley 23.928), pero de ningún modo que ella debiera efectuarse a través del cómputo de intereses.
TELEFONICA DE ARGENTINA SA c/ GCBA, Cámara de Apelaciones Contencioso, Administrativo y Tributario, 30/06/16
Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires
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