Los vacíos de la legislación fiscal constitucional que determinan elusión tributaria: caso panamericana televisión

Abstract

This research was conducted to identify gaps in tax regulations constitutional on situations or exceptional circumstances and to validate the hypothesis that these gaps occur not intended as tax evasion that undermines the effectiveness of the tax system of the Peruvian State effects, tax collection and also the credibility and trust of the tax debtor. The research was non experimental, simple descriptive, applied, explanatory and cross section. The research considers in its theoretical framework apart from elementary concepts definitions and a constitutionalized vision of Tax Law, the study of principles that limit the taxing power of the state; such as legality, equality, non-confiscatory and ability to pay, also the doctrine on the subject developed by experts and jurisprudence mandatory Fiscal Court, including the Constitutional Court, whose application in any case helps improve perspective in conflict resolution related to the taxpaying capacity and respect for the fundamental rights of the person. We used the inductive method to check the validity of the hypothesis, deductive method was used to work the arguments contained in the concerning gaps and assumptions about situations that produce tax avoidance theoretical framework. For the study of the rules, Constitution, laws and legal regulations were applied hermeneutical method and analytical and synthetic method for understanding and analysis of the judgment issued by the Constitutional Court in the process related to tax obligations was used. We worked with a sample population of 40 people consisting of civilian judges, specialized professional tax experts and lawyers SUNAT city of Trujillo. For data collection the survey technique and the interview was applied. As an instrument, a questionnaire and an interview guide that considered items related to each part of the problem identifying major gaps as those related to the principle of ability to pay; it is believed that it should be expressly provided for in the Peruvian Constitution as a guarantee for the taxpayer against the tax authority exercised by the State. The questionnaire and interview guide were validated by an expert and the coefficient alpha Cron Bach who established his reliability. The results are presented in tables and graphs which x indicate that 1) There are gaps in tax regulations such as those relating to fundamental rights of the person and the principle of taxable capacity are used by many companies in order to avoid paying taxes, configured in fact a tax evasion to the detriment of the treasury and also affects policies, processes and fiscal procedures 2) Panamericana Television S.A filing the Amparo arguing the violation of the fundamental right to freedom of enterprise and taking advantage of the existence of legal about empty and the principle of taxable capacity 3) High incidence of the essential characteristic of fundamental rights as it is in force beyond the positive standard and its inviolability and underlying value equal economic rights, as resolved by the Constitutional Court in the case Panamericana Television S-A on Non-requirement of tax and obligation 4) There are lawyers who carry out processes or procedures on tax obligations without arguments, not acting in good faith and therefore not plausible to litigate reasons, and missing their duties of loyalty and probity, resulting in distortion of the purposes of these processes and procedures. KEYWORDS: Empty legal, tax evasion tax system, fundamental rights, public need, ability to pay, principles, doctrine.