Jurisprudencia de la C.A.B.A. : Ejecución Fiscal – Opción de competencia – Domicilio del acreedor – Juicio Sucesorio

SÍNTESIS.- En el caso, corresponde revocar el pronunciamiento de grado, y en consecuencia, declarar la competencia de este fuero para entender en la presente ejecución fiscal.
La Magistrada de grado se declaró incompetente para entender en la presente ejecución fiscal y dispuso la remisión de las actuaciones al Juzgado Nacional de Primera Instancia en lo Civil en el cual tramita el juicio sucesorio de la actora.
En efecto, la redacción del nuevo artículo 2336 del Código Civil y Comercial de la Nación (artículo 3285 del Código Civil) resulta más clara, y han sido sorteadas las diversas interpretaciones a que daba lugar el texto anterior.
Así, la apertura y trámite de la sucesión debe promoverse ante el juez del último domicilio del causante, y las acciones personales de los acreedores, a su opción, ante aquel juez o ante el juez del domicilio del heredero único (conf. Alterini, Jorge H. Director General, Código Civil y Comercial Comentado, Tratado Exegético, Ferrer, Francisco A. M., Fulvo G. Sanaterillo, Soto, Alfredo M. Soto, Directores del tomo, Alterini, Ignacio E. Coordinador, Tomo XI, Ed. La Ley, Buenos Aires, 2da quincena de Julio de 2015, p. 292/293 y Lorenzetti, Ricardo Luis, Director, Código Civil y Comercial de la Nación Comentado, Tomo VI, Rubinzal- Culzoni Editores, Santa Fe, 22 de mayo de 2015, p. 606/607).
Estos argumentos justifican la admisión del recurso del Ministerio Público que ha propiciado la competencia del fuero. Ello es así aún para la hipótesis de que se considerase una interpretación diversa que postule que la opción del juez ante quien debe demandarse al heredero único sería a favor de éste y no del acreedor (conf. Calvo Costa, Director, Código Civil y Comercial de la Nación, Concordado, Comentado y Comparado con los Códigos Civil de Vélez Sarfield y de Comercio, Tomo III, Ed. La Ley, Buenos Aires, marzo de 2015, p. 579), dado que entonces, la declaración de incompetencia sería prematura.

GCBA c/ Lahiton de Álvarez Miria Elda, Cámara de Apelaciones Contencioso, Administrativo y Tributario, 9/11/2017

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

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