Consortium Legal - Nicaragua
  November 28, 2005 - Nicaragua

Approval of the Tributary Code
  by Samantha Aguilar Beteta

In Nicaragua, we did not have a Tributary Code as a unique legal body, the attributions of the Tributary Administration and the regulation of the different tributary procedures, the rights and duties of the contributor, were dispersed in our legislation existing in several cases, inapplicable norms, conflicts of application of the same, lack of adaptation to the actual technological recourses, among others. But on October the 28 th 2005, the National Assembly approved the “Tributary Code” which has not been published yet; however it is of great importance. Following you will find the most relevant aspects of such norm: The main objective for the implementation of the Tributary Code is to establish a more adequate relationship between the Tributary Administration and the contributors, in order to achieve the fair application of taxes with juridical security. In the proportion that the norms of the Tributary Code comply with the principle of juridical security and the principle of legality, in that proportion we will have an efficient and fair legal frame, since with the first principle we can predict the consequences and tributary treatment of the different situations an actions of the obliged being able to determine in a certain manner, the administrative decisions, promoting in this way the confidence on the Tributary Administration and most of all, preventing the abuses of the same. With the second principle, fair taxation is guaranteed, it is to say, that it can provide an equal treatment for all the equals, taxes will be paid proportionally according to the contributor's contributing capacity, which means that it will assure the same tributary treatment to those in similar situation and different treatment to those in different situations, therefore, inequalities are only admissible when the criteria to determine inequality are reasonable and logic. By the systematized and integrative character of such Code, it is intended to be the central instrument of the tributary legislation and strengthen the contributor's guaranties, unify the criterion of the administrative acts, modernize the tributary processes by the use of new technologies; establish the legal mechanisms and necessary to fight against fraud, exercise the tributary control and perform the collection of tributary debts; also, to reduce the litigation in tributary matters. The Tributary Code recently approved is composed of eight titles, being the principal elements the following: Title I: General Provisions: Establishes the general principles and the basic technical definitions. Among these it is mentioned: the scope of application of the code, the principle of legality, the sources of the tributary law, the interpretation of the norms, the application of supplementary law, also it stipulates the calculation of terms, the classification of taxes in force, among others. Title II: On the Tributary Relationship: Establishes who are the subjects of the juridical tributary relationship (active subject and passive subject) and the different obligations of the matter, also establishes elements such as solidarity of the tributary obligation. Stipulates the concepts of tributary domicile, unique contributor's registry, of the fact generating the tributary obligation, the means for the extinction of the tributary obligation (emphasizing on the payment, compensation, confusion, abatement, prescription and death of the contributor). Also refers to the transfer of memorandum accounts and the uncollectible tributary obligation. Finally, some relevant aspects of the juridical tributary relation are covered such as: penalty for delayed payment, privileges of the tributary obligation or debt, exemptions and exonerations. Title III: Rights and recourses of contributors and responsible: For the first time are presented in an organized way all the contributor's rights distinguishing the norm among ex officio Rights and Rights upon contributor's request. Also, the means of impugnation (administrative recourses) against the resolutions of the tributary administration are incorporated; also it includes norms on the management, act and processing. A special regime for administrative estimation for fixed quote contributors is established. All the previous stated shall permit that contributors exercise all their rights accurately. Title IV: Duties and Obligations of contributors and responsible collectors: It defines all the formal duties and obligations of contributors and responsible collectors such as: registration of the same, of the books and accounting registries, keep the documents of fiscal interest; issue invoices with the requirements of the law, file returns, facilitate fiscal revisions, provide information, pay the obligations, etc. Title V: Infringements, sanctions and offenses: it rules the sanction authority in tributary matters, establishing fines and sanctions. Also, stipulates the categorization and degrees of responsibility for the commission of offenses (authors, inductors, necessary cooperators and accessory). Also, it regulates the breach of duties and obligations by officials of the tributary administration. Title VI: Tributary Administration: It defines the Tributary Administration, its attributions, duties and particular faculties. It details the inspectors and fiscal auditors´ faculties. Also, it regulates the bases to determine the tributary obligation, the judicial collection of tributary debts, among other aspects. Title VII: Administrative Tributary Court : Through the creation of such court it is intended to provide greater guarantees to the contributor, since it is a specialized and independent organization of the Tributary Administration, directed to hear and solve the conflicts arising between the parties. Title VIII: Transitional and Final Provisions, derogations: It is established the effectiveness of the Code, its scope of application and the laws which are revoked from the effective date of the same. It is important to emphasize that the Tributary Code shall be in force 6 month after its publication in the Official Newspaper, La Gazette, with the purpose that the contributors acknowledge the same and the tributary administration is prepared and can form its officials, for its application. In the following editions we will provide details on the rights and obligations of each one of the parties involved: the contributors and the tributary administration.