En vivo Mlo Nº3 desarrollo 4 C 19

Main arguments and commentary (legal/tax focus)

Constitutional hierarchy and criminal law retroactivity (most lenient rule)

The presenter explains that laws must be enacted within the constitutional “framework” of state sovereignty; otherwise, they are unconstitutional.

In criminal matters, the principle of the most lenient criminal law applies: if a later law changes penalties to be more favorable, courts should apply the new, more benign range to defendants—unless specific legal exceptions apply (e.g., provisions related to dangerousness under the penal code).

The presenter stresses that this is not an “automatic loophole” to escape punishment. It depends on strict legal requirements and individualized judicial analysis.

Treaties and constitutional status (Argentina, 1994 reform)

The discussion argues that international human-rights treaties have constitutional-level hierarchy due to Argentina’s 1994 constitutional reform. They are not “inside” the text of the Constitution, but they share the same hierarchical status, supporting constitutional protections, including:

• the legality/retroactivity framework in criminal law.

Non-retroactivity as legal certainty (especially for tax)

The presenter contrasts legal certainty with retroactive application. Generally, laws should apply from:

• their publication, and
• their entry into force (e.g., through the official gazette and the parliamentary process).

Retroactivity—if not clearly permitted—creates uncertainty about when rules apply and undermines citizens’ ability to plan and know their obligations in advance.

Civil code / civil-commercial code principle of non-retroactivity

Citing article 3 (and noting unification under the Civil and Commercial Code from 2015), the presenter emphasizes:

• Laws apply to the future, and to the consequences of existing legal relationships.
• Exceptions exist only when a contrary provision explicitly provides retroactivity.
• Retroactivity cannot affect rights protected by constitutional guarantees.

Doctrinal stance: retroactive laws in taxes considered unconstitutional (in most cases)

The presenter says legal doctrine—and “the vast majority of legal scholars”—views retroactive tax laws as unconstitutional. The argument is grounded both in:

• constitutional guarantees, and
• international instruments with constitutional hierarchy.

The practical rationale is that retroactively increasing tax burdens effectively changes settled economic rights/asset situations, destroying legal certainty.

“Genuine” vs “non-genuine” (pseudo) retroactivity

A legal distinction is introduced:

• Genuine retroactivity: new rules apply to past, already completed situations—generally considered constitutionally problematic.
• Non-genuine / improper retroactivity: new rules apply to ongoing or not-yet-complete legal relationships—often more accepted because it treats the change as affecting an incomplete process rather than finished past events.

The presenter also references Supreme Court reasoning that “clarifying laws” in tax cannot introduce new hypotheses not already covered in the interpreted norm.

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Principle of non-confiscation (tax) and how it’s evaluated

Definition of confiscatory tax

Confiscation is framed as occurring when taxes absorb a substantial part of:

• property and/or income, or
• the taxpayer’s capacity to generate income.

“Confiscatory” is about substantial economic harm, not simply exceeding any fixed percentage.

Critique of simplistic % tests (e.g., “33%”)

Even when discussions mention thresholds (such as “33%”), the presenter argues confiscation cannot be reduced to a purely numeric rule. A tax is confiscatory when it causes excessive absorption and real detriment, even if a taxpayer might nominally “be able to pay.”

The evaluation should consider:

• economic effect, and
• extraction relative to the taxpayer’s specific situation.

Examples discussed

• “Idle property / wealth tax” style measures The presenter recalls a prior policy where owners who didn’t rent apartments faced heavy tax pressure—two options: rent out or pay costly tax. This is described as coercive and confiscatory because it forces economic behavior and imposes substantial harm.

• Corporate taxation and “percentage vs impact” debate Confiscation depends on how tax affects the taxpayer’s net income/assets, not merely on the taxpayer’s size or whether the rate “sounds low.”

• Analogies to explain “economic harm” logic Even if small amounts per branch seem minor, aggregate extraction and the overall structure of the tax system can still produce confiscation. The state’s appropriation must be assessed contextually.

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Consumer-law / unfair practices theme (unjust enrichment, practical disputes)

Alongside the tax/legal theory, the discussion shifts to real-world examples of unjust enrichment and consumer-treatment issues.

Charges passed to consumers (credit/debit/payment fees)

The presenter argues that companies often shift costs or losses (such as:

• payment processing,
• exchange-rate/card differences, or
• “no change” handling) onto customers, while the obligation to manage those costs should remain with the business.

“No change” / payment surcharges logic

Certain practices—such as arguing “we don’t have small bills” or charging surcharges for specific consumer payment methods—are presented as potentially unlawful or unfair because they effectively place business/operational issues onto consumers.

Custom as a source of law (warning)

The presenter notes that if repeated private practices become “accepted customs,” they can form informal rules. However, this may conflict with formal consumer obligations (e.g., duties related to change/payment). The message is to not treat normalized unfair conduct as legally valid.

Inflation/price tagging and retailers’ calculations (economic reasoning)

A segment addresses how retailers manage inventory under inflation. When stock bought at different prices is mixed, applying a uniform markup can distort profits and losses. In real retail practice, prices often reflect blended cost structures rather than clean per-item recalculation.

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Presenters / contributors

• The main speaker (legal professor / lawyer; self-described civil law specialist)
• Monica
• Nancy
• Adri
• Guadalupe
• Alejandra
• Perla
• Natalia
• Karina
• Mónica (referenced again in discussion)
• Martin (mentioned as a participant—described as a colleague / numbers statistician in an anecdote)