LÍMITES CONSTITUCIONALES A LA POTESTAD TRIBUTARIA MUNICIPAL RESPECTO AL SER REDISEÑADOS MEDIANTE ORDENANZAS EN ECUADOR.

Abstract

Recently, the Constitutional Court of Ecuador declared the unconstitutionality of the tax ordinance issued by the Decentralized Autonomous Government (GAD) of the Eloy Alfaro Canton, which established a levy of 1.5 per thousand on total assets. The ordinance identified the performance of commercial and industrial activities within the jurisdiction as the taxable event, and designated as taxpayers those individuals and entities required to maintain accounting records. The Constitutional Court held that Ordinance No. 932 exceeded the constitutional powers of the GAD by altering the essential elements of the 1.5 per thousand tax on total assets, thereby violating the principle of tax law reserve enshrined in Article 301 of the Constitution. Furthermore, the Court found that the ordinance infringed upon the right to legal certainty due to its retroactive effects, which contravene the provisions of Articles 82 and 300 of the Constitution. These irregularities were deemed to constitute a breach of the constitutional order. In accordance with the Court’s precedents, restitution mechanisms must be activated, including the potential reimbursement of taxes collected unconstitutionally.