Facts

The Constitutional Chamber of the Supreme Court recently revoked decisions issued by the Concepcion Court of Appeal (August 2016, Docket 28,390-2016) and the Santiago Court of Appeal (September 2017, Docket 35,288-2017). The underlying issue in both cases was the Tax Department's authority to deny taxpayers the ability to issue invoices in certain circumstances (under the Chilean tax system, the Tax Department must authorise and stamp all invoices and tax documents).

Article 8ter of the Tax Code sets the requirements that taxpayers must fulfil in order to be able to issue tax invoices. In accordance with instructions issued by the Tax Department, tax inspectors have the power to deny taxpayers the ability to issue invoices if they have failed to:

  • satisfy certain tax obligations;
  • agree with clear objections; or
  • keep up to date with all of their filing obligations.

In general, a constitutional protection action allows a person whose constitutional rights have been affected to file a claim before the court of appeals with jurisdiction in the place where the alleged violation took place.

In both of the above cases, the respective appeal court rejected the constitutional claims and the taxpayers appealed to the Supreme Court.

Decisions

The Constitutional Chamber of the Supreme Court revoked the appeal court decisions by a majority vote of three to two and decided that the Tax Department's actions were unconstitutional. In the Supreme Court's opinions, the Tax Department's instructions exceeded its constitutional authority and went beyond what the law requires. The Tax Department was ordered to allow the taxpayers in question to issue tax invoices.

Comment

It is unclear whether the Tax Department will review its criteria regarding the authorisation to issue invoices. Court decisions in Chile have a relative effect (ie, they affect only the parties in the specific case). Therefore, the above decisions do not imply that the Tax Department will change its procedures and rules which, at present, block taxpayers in certain cases from being able to issue invoices and thus operate their businesses effectively.

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For further information on this topic please contact Omar Morales at Montt y Cia SA by telephone (+56 22 233 8266) or email (omorales@monttcia.cl). The Montt y Cia SA website can be accessed at www.monttcia.cl.