In the context of the infringement of inaccurate declaration, much has been said regarding the substitute value and historically the regulations of the Customs Code regarding the export value, as well as the regulations of the GATT regarding the import value, have been interpreted as a rigid corset that prevented the confirmation of sanctions for infringements.
After analyzing many failures, some of us have even come to consider that very often the theoretical abstraction that the strict use of valuation methods implied even reached unsuspected levels, and even presented a certain dissociation with common sense.
However, there is a trend - which is growing considerably - which indicates that in order for an inaccurate declaration offence to be established, the General Directorate of Customs does not need to prove the customs value of the goods in question, but must only prove the existence of an inaccuracy in the price declared by the taxpayer. And once the declared price has been ruled out, the customs may also legitimately rule out different valuation methods until it finds the one that best suits the circumstances of the specific case.
In this regard, it is worth remembering that the judgment of October 6, 2021, issued in the case "MALTERIA PAMPA SA v. DGA s/ DIRECT APPEAL BY EXTERNAL ORGANIZATION (TF 35123-A)", file 44028/2019 of Chamber III of the Honorable National Chamber of Appeals in Federal Administrative Litigation, has been illustrative.
In saying that it was illustrative, I actually want to point out that its illustrative aspect is the novel treatment it makes of the subject under consideration; not only by applying the so-called transfer prices (art. 15 of the income tax law) to a purely customs issue but mainly by having applied the "dynamic burdens of proof", taking into account certain special factual circumstances that occurred in its case.
Indeed, the ruling highlighted that since a triangular transaction was being analysed where the link was recognised by the parties, this allowed the presumption of the existence of a certain operational capacity to alter the declared sales values (which is true).
For this reason, the judges considered that the burden of proof of the accuracy of the value was on the accused, adding that the company in the best position to demonstrate that it met the requirements for not applying the determination of the amount corresponding to the triangular transaction between related parties provided for in article 15 of the LIG was precisely the accused company itself.
He strongly stated that: “(…) If its only purpose is to re-invoice amounts that should have been invoiced in Argentina, the typical conduct that is repressed by art. 954, section 1, subsection c) of the CA for the receipt - real or potential - of an amount other than that which would have corresponded is configured (…)” (see page 75 of the ruling).
Of course, this pronouncement has been resisted by means of an extraordinary federal appeal and, therefore, as of today it is not final, but it has opened a reasonable debate on the subject.
At this moment, customs doctrine is thinking: who has to prove what?
In this order of ideas, the Honourable Tax Court of the Nation has deepened this line of thought by reflecting: “XXXII.- (…) the appealed decision must be upheld, in the sense that there is an unjustified price in the name of the obligated party, since the latter was unable to prove the veracity of the reported price (…)” and that “(…) Indeed, if, for the infringement described in art. 954 of the CA to occur, there must be a falsification of the invoice or price, this would make the figure of said regulation a figure lacking in content since the majority of the cases of falsification of invoices would be covered by the figure of the crime of smuggling provided for in arts. 864 inc. b) and 865 inc. f) of the CA (…)” (Vote of Dr. Miguel Licth, to which Dr. Claudia Sarkis adheres in case No. 31.332-A: “LFE v. DGA s/ appeal”, judgment of 28/09/2022).
Therefore, it is clear that for the purposes of sanctioning an infraction of inaccurate declaration, we start from the basis that, according to the criminal type, simply demonstrating the inaccuracy is enough to sanction for an infraction of inaccurate declaration.
Furthermore, from the above, the important conclusion must also be drawn that, if there were "falsehood" regarding the documentation presented to customs, then rather than an infraction, it should be referred to as a crime of smuggling.
That being said, the salient point of the doctrine under discussion, in regard to its infraction aspect, consists of delving into the evidentiary aspect related to the issue analyzed and whether - the system of dialogue of sources - in certain circumstances can (or cannot) be enlightening.
The system of dialogue of sources puts in check the “simple subsumption in the norm” (at least in the norm that was historically analyzed for the purpose of discovering the customs value) and allows many conventional and constitutional principles to be projected towards customs administrative procedure, actively and enormously contributing to the administrative procedure truly seeking the material truth (implicit in the ex officio impulse of art. 1 inc. a) law 19.549) and the guarantee of the “adjective due process” of art. 1 inc. f) of law 19.549); objective, excuse the redundancy, also desired within the procedure before the Tax Court of the Nation (arts. 1143 and 1156 of the Customs Code)
Consequently, I believe that this new jurisprudential path that is making its way, fulfills much more completely the aspiration of all legal processes, I refer to the aspiration of strengthening justice in Argentina, in accordance with the preambular mandate.
In this same order of ideas, it is necessary to put certain ideas in their correct hierarchical order… the process serves justice and is never the other way around.
And of course, if under the protection of different procedural issues the final result is not good or is not the one desired by the legal system, then the judges simply have the duty to seek an interpretation that is in accordance with the entire legal system, interpreting the rules in a connected and harmonious manner, avoiding arbitrariness.
In short, I believe that we must break with the preconception that the application of sanctions by customs has a negative connotation, in order to understand, once and for all, that customs does not seek to sanction those who declare truthfully and accurately; and that on the contrary, it is necessary to sanction those who in some way manipulated the transaction price of the goods, which implicitly leads us to move towards a much fairer system for all those who complied with the high standards of the customs system.
Therefore, since it is not a novelty that the judge can distribute the burden of proof by considering who is in a better position to prove (e.g. art. 1735 of the CCyC, among other rules), the application of the dynamic burdens of proof in cases of triangulations between related parties seems reasonable.
Likewise, this conclusion could also be drawn from arts. 234 paragraph 2 and 332 paragraph 2 of the Customs Code, since in both cases the taxpayer is required to indicate all circumstances or elements necessary to allow the customs service to control the correct tariff classification and valuation of the merchandise in question.
It should also be added that it would seem reasonable for the National Tax Court to expressly ask the importer or exporter, as the case may be, to fully justify the declared price, clearly indicating that it will assert the dynamic burdens of proof.
In such a context, the use of “hominis presumptions” would allow, on the basis of objective elements provided by one of the parties, the other to be asked to provide certain evidence under the warning that, in the event of non-compliance, the judge would decide by assuming as true something that his opponent claims, weighing which party has the greatest facility to provide evidence.
In some way, this type of reasoning guarantees the right to defense, but not only for one of the parties but for both (administrator and administration).
However, it is not a question of transferring the evidence that is required by customs to the importer or the exporter, as the case may be. Far from it, it is simply a question of not requiring one of the parties to provide evidence that would be difficult for its opponent to obtain, given the existence of objective evidence that would point in a certain direction (for example, one or more serious indications).
In conclusion, I must point out that these considerations also seem to be those that Customs wants the judges to begin to analyze and take into account, as was recently stated in his speech by Dr. Guillermo Michel (event of the Argentine Association of Fiscal Studies, Commission of Tax Courts, which took place on November 16, 2022), in which I also had the honor of participating.
Lawyer (UBA), Customs Law Specialist (ECAE PTN), Customs Management Specialist (UNLaM), and Researcher (ECAE PTN). Professor of undergraduate and graduate customs law, member of the AAEF, IAEA, and the Customs Law Institute (CPACF). The opinions expressed in this publication are the author's own, technical, and should not be considered the opinions of any institution to which the professional is affiliated.
