As we are aware, pursuant to Article 133 of the Constitution the people are under the obligation to help cover public expenditures by paying the taxes, charges and other fees provided for by law. Furthermore, Articles 316 and 317 lay the foundations for the country’s taxation system.
This is not the first time that mention has been made of human rights in connection with taxation; in fact a number of excellent articles on this very subject have been presented at different meetings organized by the Venezuelan Tax Law Association (AVDT in Spanish) and in journals dealing with tax law. As stated by Professor Serviliano Abache, “human rights set direct boundaries as regards the exercise of the State’s power of taxation… to the extent that they represent a guarantee for the dignity and unfettered development of mankind.”
Nevertheless, the arrival of the COVID-19 pandemic has prompted a major shift when it comes to people’s priorities. We have now begun to take a look at what we consider to be truly fundamental and to revisit Maslow’s famous pyramid illustrating our hierarchy of needs. If, before the pandemic, we were at the level of self-fulfillment needs, now with its arrival we find that we have dropped back to the level of basic needs: that of survival where safety and security needs are more important than any of the others.
We must remember that, as José Troya Jaramillo has said, “the right to life is unquestionably the most important of human rights. The right to freedom, the right to safety and, generally speaking, political and civil rights, as well as economic, social and cultural rights, all depend on the right to life.”
That is why, when reading the concerns raised on different social networks by many professionals regarding compliance with their formal obligations, with the risk to their health and welfare this could entail if it involves going to some government agency office, I cannot help but wonder whether the government, or the people themselves, truly grasp the importance of human rights. We must remember that the Constitution itself, in Article 337, states that, in the case of states of exception, the rights guaranteed by the Constitution may be temporarily restricted, with the exception, however, of the right to life, the ban on incommunication or torture, the right to due process, the right to information and other intangible human rights.
This pandemic is something that we will have to live with for some time, it is a fact of life that we must come to terms with. At this point in time, however, when a) there is no known cure, b) the health-care system is precarious, and c) the best option for preventing contagion is to avoid crowds, the only conclusion to be reached is that the human right to life, to health and physical safety as provided for in Articles 43, 46 and 83 of the Constitution, must rank above the obligation provided for in Article 133 of that same document. This does not mean that there is no need to perform our tax obligations, only that people must not risk their health in order to do so. This also applies to any procedures that the different tax-collecting agencies might wish to begin against taxpayers or their representatives. The obligation to show up at some administrative office in order to accept service of a notice by a government agency cannot outweigh a person’s human rights. Any effort to enforce such an order would be a violation of a constitutional principle and, thus, would be deemed null and void as stipulated in Article 270 of the Constituent Decree Enacting the Tax Code, as well as Article 19 of the Administrative Procedures Act.
1 Abache Carvajal, Serviliano. “Determinación, exigibilidad y derechos humanos hacia una Reforma Tributaria desde el Derecho de los derechos.” X Jornadas Venezolanas de Derecho Tributario 2011. Caracas.
2 Troya Jaramillo, José Vicente. Tributación y Derechos Humanos. Revista de Derecho N° 2. UASB-Ecuador. Quito, 2003 – 2004.