What the writ of mandamus for delay is and when it lies before the National Tax Court
The writ of mandamus for delay (amparo por mora) derives from the right of administrative parties (in our case, taxpayers) to obtain a decision from the Administration, grounded constitutionally in the right to petition, the right to effective administrative protection, and the right to obtain a decision within a reasonable period of time, and which is now expressly recognized by Article 1 bis of the Administrative Procedures Law No. 19,549, as incorporated by Law No. 27,742.
The mechanism provided for under Article 182 of Law No. 11,683, the Tax Procedure Law, enables any person adversely affected in the ordinary exercise of a right by the excessive delay of administrative employees in carrying out a “proceeding or action” (trámite o diligencia) falling within their responsibility to bring an action before the National Tax Court (the “TFN”).
For such action to lie, the following requirements must be satisfied:
- the existence of harm suffered by the taxpayer in the ordinary exercise of a right or activity;
- such harm must result from an excessive delay by the tax authorities in carrying out a proceeding or action falling within their responsibility; and
- the interested party must have filed a request for expedited action (pronto despacho) with the tax authorities, without the latter having resolved the request within 15 days.
Accordingly, once these requirements have been met and the matter is properly before the court, Article 183 of Law No. 11,683 provides for expedited proceedings for its resolution. The scope of the decision issued as a result of such proceedings is clear: the Court orders expedited action (pronto despacho); it does not adjudicate the merits of the underlying matter, nor does it prescribe a particular substantive outcome.
The focus of the controversy: seeking expedited payment
The issue, which might appear straightforward, is not. For decades, legal scholarship and case law have debated the scope to be attributed to the term “proceeding” (trámite) used in Article 182 of Law No. 11,683, and whether it encompasses a claim submitted to the Administration seeking payment of a previously validated tax credit, or whether payment falls within the realm of “enforcement” and therefore does not form part of the proceeding itself.
One position, which may be characterized as the “broad” approach, is based on the premise that the proceeding relating to refunds or reimbursements consists—in all cases—of the validation and payment of the amounts recognized as due. Under this view, any different interpretation of what constitutes the proceeding would result in merely formal, rather than effective, recognition of the right at issue.
Conversely, the opposing position holds that the administrative action that may be expedited comes to an end once the Administration has issued its decision. Once the act validating the tax credit has been issued, the Administration’s intent has already been expressly stated: there is no longer any pending request requiring resolution, but rather an obligation to pay that must be performed. Consequently, the writ of mandamus for delay—designed to overcome formal administrative inaction—would not apply. Nor would a subsequent demand for payment give rise to a new duty to respond capable of reopening the procedural avenue.
Under this approach, the writ of mandamus for delay would serve only to compel the Administration to issue a decision (in our case, the validation decision), after which another action would have to be brought to compel the tax authorities to perform their payment obligation. It should be noted that it is far from clear what such subsequent action would be, or, even less, what practical benefit it would provide if, after obtaining a decision from the Tax Court, the taxpayer were required to initiate another proceeding to obtain payment of an amount that is legally due and has already been recognized.
The position of the National Tax Court
As noted above, the National Tax Court has not adopted a uniform position: some Chambers have endorsed the first approach, while others have adopted the second.
By way of example, Chamber A considers that refund proceedings are completed only upon actual payment, effected through the crediting of the relevant amounts to the taxpayer’s bank account. It has likewise held that the statutory mandate to “resolve whatever is appropriate to ensure the exercise of the affected party’s right” means, in cases where the tax authorities validate the refund, that the taxpayer must be able to dispose of the funds. Accordingly, it ordered the then Federal Administration of Public Revenue (“AFIP”) to complete the proceeding within 15 days, that is, to deposit the amounts into the taxpayer’s account.
The same position was adopted by that Chamber in La Sibila and Patagonia Meat S.A., where it held that “the writ provided for in the procedural statute refers to any proceeding or action, and this can only be understood in terms of their entirety.”
Chamber C reached the same result, although the path taken illustrates the division within the Court. In Proinvest S.A., the writ was granted by majority vote: Judge Gómez voted to dismiss the action, relying on the grounds that the refund does not arise automatically and that the petitioner had expressly sought actual payment of the refunds—which, in her view, conflicted with the doctrine established in Comatter, where the Supreme Court held that a request seeking an order from the Tax Court compelling the Administration to pay sums of money was inadmissible because it exceeded the purpose of merely carrying out a proceeding under Law No. 11,683.
By contrast, in Bravo Micaela Inés, Chamber C ruled unanimously: after the tax credit had been validated on December 5, 2023, and the application had been closed in the registry system without any credit being made or any deadline being established, the Chamber ordered the amounts to be credited within 15 days. More recently, in Ferrosider S.A., Chamber C rejected the tax authorities’ argument that a finding of delay was unwarranted where no statutory deadline for issuing a decision existed.
This line of reasoning continued in 2025. In Santos Ricardo Agustín, Chamber A established a 15-day period for the tax authority to complete the refund of withholding amounts that had already appeared as “Automatic Refund Approved.”
By contrast, Chambers B and D have favored the position that payment does not form part of the refund proceeding and have therefore rejected the availability of the writ of mandamus for delay in cases where the petitioner seeks the actual deposit of validated amounts.
The position of the National Federal Court of Appeals in Administrative Litigation
Before the National Federal Court of Appeals in Administrative Litigation (the “CNACAF”), the picture is reversed. The precedents reviewed reflect a virtually uniform position against extending the writ to the payment stage.
Chamber II overturned Patagonia Meat based on three arguments that were subsequently reiterated. The court held that the writ of mandamus for delay is limited to overcoming formal administrative inaction and that claims seeking affirmative performance fall outside its scope. It further stated that the Administration’s intent had already been expressly manifested through the decisions ordering the refund, such that a subsequent demand for payment did not create a new duty to respond that would make the writ procedurally available. Finally, it held that payment does not constitute a “proceeding or action” within the meaning of Article 182 of Law No. 11,683, since those concepts refer to steps or administrative actions aimed at resolving the merits of a matter—that is, the procedural sequence culminating in the relevant decisions—and not to the act of payment, which, as a performance obligation, falls outside the formal framework of the proceeding.
Chamber III adopted the same position, holding that a request seeking the actual bank transfer of amounts that had been in “approved for refund” status from the outset exceeds the limited scope of review imposed by Article 183, citing Comatter. Along the same lines, although outside the tax context, Chamber IV held that the writ of mandamus for delay is not an appropriate procedural vehicle for compelling performance of an obligation to do something other than issue an administrative act, nor for expediting payments, even where a payment order has already been issued; instead, the interested party must resort to ordinary judicial proceedings.
Conclusion: the problem is not the tax credit, but the procedural remedy
The practical significance of this issue is far greater than its technical nature might suggest. When a taxpayer has a tax credit expressly recognized by an act issued by the tax authority itself, yet must nevertheless wait months for payment, the legal issue is no longer whether the credit exists—which is not in dispute. The issue is which remedy is available to address the delay in payment or, depending on the position adopted, to compel completion of the proceeding.
Here, the answer currently offered by the system is unsatisfactory. If the writ of mandamus for delay does not extend to the payment stage, requiring the taxpayer to resort to ordinary judicial proceedings means litigating for years over an undisputed claim, with the financial cost borne entirely by the private party, while also affecting public funds through default interest and litigation costs in cases resulting in adverse judgments. Requiring a taxpayer—who in good faith submitted to a regulated administrative procedure—to continue litigating for several more years through the “ordinary channels” not only appears unreasonable, but also fails to provide a clear solution, since it is not clear what those ordinary procedural avenues would be.
In our view, the key to a possible reconciliation lies in a nuance that adverse case law does not always take into account. Several special refund and reimbursement regimes expressly establish a deadline for crediting amounts that have already been approved. When that deadline expires, the failure to pay is not merely a breach of an obligation to give or pay; it constitutes a failure to complete a stage of the procedure that the regulations themselves require, and that is precisely the sphere governed by Article 182 of Law No. 11,683.
In our view, the same conclusion should apply to regimes that do not establish any deadline. If the regulatory authority deemed it necessary to establish one where it did so, this was because it recognized that, without a definite time limit, the right to a refund would become illusory. It would be contradictory for the absence of such a deadline—resulting from a decision by the debtor agency itself—to improve the latter’s position while leaving the taxpayer without a procedural remedy and, clearly, without the ability to obtain a decision within a “reasonable period of time.”
In either scenario, the claim is the same: to obtain the refund and enjoyment of the retained capital within a reasonable period of time. This argument is further strengthened today by the express recognition of the principle of effective administrative protection incorporated into Article 1 bis of Law No. 19,549, which requires that taxpayers be heard and that administrative proceedings be commenced and concluded within a reasonable period of time.
In addition, it is worth emphasizing that the right to obtain a refund does not constitute a benefit or gratuitous concession in favor of the taxpayer, but rather the restitution of amounts that never formed part of the taxpayer’s tax liability and whose recoverability is expressly provided for under the refund mechanisms established by Law No. 11,683 and—in relation to Value Added Tax—Law No. 23,349. In this manner, the legislature has sought to preserve the neutrality of the tax and prevent the taxpayer’s working capital from being unnecessarily tied up.
We do not purport to suggest that the issue has been settled, because it has not.
With the National Tax Court internally divided, a Court of Appeals that has consistently maintained a restrictive approach, and no ruling from the Supreme Court of Justice of the Nation specifically addressing this issue, the choice of procedural avenue requires a case-by-case assessment, taking into account the applicable regulatory regime, whether or not there is a regulatory deadline that has been breached, and the risk of an adverse award of costs.
What does appear clear is that the underlying tension remains unresolved: between an action conceived to remedy administrative inaction and a reality in which the inaction no longer consists of failing to decide, but rather of failing to comply with what has already been decided.