La cuestionable constitucionalidad del plazo preclusivo para impugnar actos tributarios presuntos

Abstract

Traditionally, our legal system has defined the lack of official response as a fiction created by Law that -in order to achieve the desired legal certainty- allows the administered, as a person subject to the Administration jurisdiction, to move forward in defense of their claims without being forced to wait indefinitely (“sine die”) until the Administration (which has already fulfilled its obligation to solve the procedure on time) enact a pronouncement. So, that is precisely why -from the perspective of the Constitutional Right to get an Effective Judicial Protection-, it has been interpreted that the deadline for appeal the pronouncements implicitly rejected by lack of official response cannot prevent future possibilities to have recourse to law. However, the truth is that the administrative and judicial rules clearly provide several cases in which the deadline is closed for appeal the implicit administrative acts. In this sense, it seems obvious that this situation is a constitutional anomaly that requires -in an explicit form by the mechanism of the “preliminary question of unconstitutionality”- to be declared by the Constitutional Court that no possibility to have recourse to law transgresses the Constitution. Thus, it could clarify the legal regime about the executive actions against lack of official response in the tax area.