The FONAVI: Return what, who and why?
By Dr. Jorge Rendon Vasquez
Emeritus Professor of the Universidad Nacional Mayor de San Marcos
The Constitutional Court of 03/09/2008 (No. Expte. 01078-2007-PA/TC) on a citizen petition for an order to the National Election Board to submit to referendum a bill which provides money back FONAVI workers who have contributed to building this fund, it could be shown as an example of justice and misleading, paradoxically, unconstitutional, in short, like another case of justice underdeveloped. This statement and the requirements of certain civil courts, the National Election Board was forced to admit that referendum to be held on October 3, 2010 (Resolution N º 331-2008-JNE of 07/10/2008).
The core of this case is as follows: By Decree Law 22591 of 30/6/1979, created the National Housing Fund, under the name of FONAVI, whose administration was given to the Housing Bank (art . 1 º). The resources of the Fund were mainly: a) a contribution of public and private dependent workers, equivalent to 1% of their earnings, b) a voluntary contribution of independent workers, equivalent to 5% of their monthly income, and c) a employers contribution, equivalent to 4% of the salaries of its workers to the top five urban minimum living wage. The purpose was FONAVI housing be designed to be rented or sold to workers and taxpayers to lending for housing purposes to them (art. 17 º).
The 1933 Constitution provided, in that time, only for the public service law could create, alter or abolish taxes (art. 8 º) and the General Budget entries determined annually and costs the Republic (art. 9). Although the Government to legislate by decree laws, tax and budget was in line with these constitutional provisions that were essentially reproduced by the 1979 Constitution, promulgated on 12/7/1979. Said this, in fact, that "Only by special law will create, modify or repeal taxes ..." (art. 139 º) and that "economic and financial management of the Central Government is governed by the budget approved annually by Congress. Institutions and public entities as well as local and regional governments are governed by the respective budgets they approve. "(Art. 138 º). That Constitution, the state reserved a large business function and the provision of productive and service activities (art. 114 º) so that the FONAVI continued in the state budget under the administration of the Housing Bank, which was a public company designed to fulfill the function of promoting "the execution of public and private development and housing" (Const. 1979, art. 18 °), and resources continued to tax the nature of taxes.
In the nineties, the FONAVI was treated erratic, without affecting mainly its character of public resource. By Decree Law 25520 of 27/5/1992, the Fujimori government FONAVI seconded to the Presidency of the Republic and by Decree Law 25981 of 7/12/1992, ruled that since 1993 the rate payable would be 9% and would be responsible only for workers, for which the salaries were increased by 10%.
But almost immediately, by Law 26233 of 16/10/1993, most government changed the scheme by ordering that the contributions would be equal to 6% by employers and 3% paid by salaried workers, without affecting the 10% increase in pay. He followed the Law 26504 of 17/7/1995, which placed an obligation on employers to pay 9% of the contribution to FONAVI and exonerated the workers to pay any amount. Conforming to this scheme, employers were able to set the rate to charge 7% of wages, by Legislative Decree 853 of 25/9/1996, rate ratified by Legislative Decree 870, of 30/10/1996. A new pressure from employers led the charge rate to 5% of wages, by Law 26851 of 7/8/1997. Finally, Law 26969 of 24/8/1998, became FONAVI in contributing to the Extraordinary Solidarity Tax purposes, in large part, similar to those from this entity.
So FONAVI contributions to state resources were always administered by the Housing Bank, first, and then by the Central Government.
However, the Constitutional Court commented, these contributions are not taxes, and are not, not applying the constitutional rules in force since the FONAVI was created in 1979, but those of ... 1993 Constitution, in this case specifically applying art. 74 degrees of it. But do not say the art. 103 º of the Constitution of 1993 that the "law has no retroactive force or effect? The members of the Constitutional Court ignored signatories of this statement, moreover, that all state resources are accounted for in the public budget and, with the exception of contributions para la Seguridad Social (art. 12º de la Constitución de 1993) y del producto de las ventas de las empresas públicas, sus ingresos tienen la naturaleza jurídica de tributos en cualquiera de sus modalidades. La enumeración de los tributos por determinadas leyes, entre ellas el Código Tributario expedido el 30/12/1993 (Decreto Legislativo 773), no deja sin efecto la calidad de ingresos tributarios de otras contribuciones al Estado instituidas por leyes especiales, si cumplen los principios de legalidad, uniformidad, publicidad y obligatoriedad. Y, si bien estos principios estaban presentes en la contribución al FONAVI, no era posible, en rigor, aplicarlos retroactivamente.
Y luego los Signatories to the Constitutional Court ruling in question are allowed to say "The FONAVI is managed by a legal person (the Housing Bank) other than the State." I think it's the first time someone in authority says that the Housing Bank (which no longer existed when the Constitutional Court issued its decision) was not the State. How could they ignore that the state is constituted by the Central Government, public institutions and public companies? Set out these legal inaccuracies in its ruling, and they could commit another: having a referendum on "rules of tax and budget", as relevant to FONAVI, expressly prohibited by art. 32 º of the Constitution.
Constitutional Court members signed the statement indicated were: Magdiel Gonzales Ojeda, Javier Alva Orlandini, Juan Bautista and Ricardo Beaumont Bardelli Lartirigoyen Callirgos. In an extensive and well-informed vote in contention in the resolution of the National Election Board No. 331-2008-JNE of 7/10/2008, the vocal Enrique Mendoza Ramírez discover some of the inconsistencies of the ruling and order referendum.
The proposed return of resources Workers FONAVI taxpayers for the bill to submit to referendum raises other questions. What really helped salaried workers? The contribution payable by employers did not leave their property, or the workers. It was a cost of goods and services sold, charged with the price paid by the consumer public and using them. And so why return to the workers what they did not pay? You can ask other questions such as: What are the investment situation FONAVI made in housing, sanitation and other works? What is the amount that each worker has contributed? Even winning the other the unreasonable referendum next October 3, would be submitted on time the problem of determining the amount of contributions paid by each employee every month, with the forms and pay stubs for a problem that will generate a bureaucracy, gadgets and deadlines be projected with certainty until hell freezes over.
It is worth remembering that, on the same basis, supported by the Constitutional Court referred to other social groups can claim a refund of contributions to health, pensions, SENATI SENSICO, etc.
From the bizarre situation created by the proposed return of FONAVI arises, however, the need to schedule a public housing policy that should be present in the State. If the government has made investments in this sector, should take stock and communicate it openly. Socially it is possible to compensate for taxes paid in the past with subsequent achievements in this field, and more so if the original law was aimed FONAVI help solve the housing problem of workers and not to provide individual remedies to the newest category of "fonavistas" built around the expectation of extracting any number of the state.
