By: Gabriel Pinto
Head of the Tax Department
We are happy to inform you about a recent development in the ongoing dispute with Customs regarding the classification of pharmaceutical products. This issue revolves around whether Customs should adhere to the "medication" classification determined by the regulatory authority and, consequently, apply the relevant foreign trade taxes to their importation. Customs has persisted in categorizing specific products as "food", resulting in the imposition of significantly higher foreign trade taxes.
The Constitutional Court has now issued a judgment mandating that Customs comply with the regulatory authority's determinations and levy only the corresponding taxes.
The case originated in 2015 when we filed a challenge against Resolution No. SENAE-DDQ-2015-0322-RE dated April 2, 2015, through which the National Customs Service of Ecuador (SENAE) declared the Administrative Challenge No. 078-2015, related to the importation of two multivitamin products under Refund No. 028-2015-10-00028621, unfounded, and affirmed the assessment made on the importation in question.
In June 2018, the District Court of Tax Litigation ruled in our favor, annulling the challenged resolution. However, SENA-E filed a cassation appeal in 2019, which was accepted by the National Court of Justice, reversing the judgment to our detriment. Subsequently, we filed an Extraordinary Protection Action against this judgment and the denial of its clarification.
On August 23, 2023, the Constitutional Court, through a judgment, resolved to accept the Action filed in favor of our client.
Analysis by the Constitutional Court
The Constitutional Court evaluated three critical legal issues, all related to legal certainty:
It assessed whether the Specialized Chamber had contravened a similar case in a previous Constitutional Judgment.
It examined whether a constitutional precedent was ignored.
Finally, it investigated whether a resolution that had already been invalidated by a previous judgment was applied.
The Constitutional Court concluded that the Specialized Chamber had failed to apply constitutional precedents.
As a result of this significant legal victory led by our Tax and Customs Department, the Constitutional Court accepted the Extraordinary Protection Action and declared that our client's rights to legal certainty were violated. It ordered the annulment of the cassation judgment and the order denying the clarification request.
The Constitutional Court urges authorities to coordinate and maintain uniformity in the classification of products with identical chemical compositions, ensuring fair competition conditions and allowing our client to carry out their economic activities in accordance with their original purpose.