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Last week the Constitutional Court overturned article 313 of the Development Plan of the government of Iván Duque, that I had created from last year to 2022 a surcharge of 4 pesos in energy services for strata 4, 5 and 6 per kilowatt / hour consumed, money that was destined to strengthen the Business Fund of the Superintendency of Home Public Services.
In its ruling, with a presentation by Judge Alejandro Linares, the Constitutional Court decided to overturn that surcharge in energy services “with immediate and future effects “, In other words, from the next billing of services, this tax will not be able to be charged on receipts, neither to citizens nor to companies, what has already been paid remains.
This decision of the Court is key since, according to the Superintendency of Public Services, with cut to October to that Business Fund had entered 162,877 million pesos for what the users had paid more in their receipts, on account of that tax of the Development Plan. And for the collection of the surcharge to companies until October 31 169,000 million more pesos had arrived.
(Also read: Lawsuits are down 23.6 percent this year).
But what were the reasons for the high court to declare that this surcharge for the Iván Duque Development Plan was unconstitutional?
The Court studied a lawsuit against that article of the Government Development Plan and agreed with the plaintiff that this surcharge was a tax whose purpose is not one of those allowed by the Constitution. Furthermore, it points out that that charge violated the principles of equality, equity, efficiency and progressiveness.
And it is that, according to the evaluation made by the Court, behind the surcharge there was no aim to improve social investment, nor did it have a public interest, nor did it seek to fulfill the purposes of the social rule of law, which are the goals that a government should pursue. tribute.
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The objective of this surcharge, said the Court, and which is not valid from the eyes of the Constitution, was to pay the obligations of private companies of public services such as Electricaribe or Emcartago, through the Business Fund of the Superintendency of Domiciliary Public Services.
For the Court, this objective to collect specific taxes on a sector -as are strata 4, 5 and 6 of the population and industries- it is not valid because the tributes are not designed to save companies.
“Said destination is contrary to the principle of democratic deliberation, since the rescue cannot be classified as ‘social investment’ ex post of a particular company in a certain sector, as is the case of Electricaribe “, assured the Court in its decision.
(Find here: The ‘surgeries’ that the Court has done to Iván Duque’s Development Plan).
For the Court, while Congress can approve the creation of an institutionality and a permanent policy To guarantee the provision of home public services, this situation must occur before the provision of the service is affected by the financial problems of the companies, and not after that situation occurs, solely with the aim of saving them.
This is how what taxes should seek is the general interest and improve the provision of a public service, and not simply protect the interests of individuals. That is why the corporation concluded that Article 313 of the Development Plan violated the prohibition of creating income for a specific destination, because it did not seek the general welfare, improve the quality of life of the population, distribute opportunities equitably, and participate in benefits of development or the enjoyment of a healthy environment.
Said destination is contrary to the principle of democratic deliberation, since the ex post rescue of a private company such as Electricaribe cannot be classified as ‘social investment’.
Thus, the Court pointed out, what Congress can approve is a “true public policy, oriented to the entire national territory and not limited to financial and administrative reorganization ex post (after the events) of a private company that provides home public services. , taken into possession in a particular region of the national geography “.
In its decision, the Court also assured that the surcharge was a one-sided benefit, since its payment was not optional or discretionary and also “the taxpayer does not receive any additional consideration or benefit from the State that is individual, proportional and direct.”
JUSTICE DRAFTING
Twitter: @JusticiaET
