Missing goods upon unloading: taxable persons. Differences between goods arriving on the ship and goods unloaded. Tolerances - calculation. Tax on liquid fuels: lack of configuration of the taxable event with respect to the missing goods (position of the majority). Principle of legality of taxation.
Dr. Catalina García Vizcaíno said:
I) That at fs. 10/14 round. Agencia Marítima Aguirio SRL, through its representative, files an appeal against the resolution dated 18/1/01 of the Administrator of the Campana Customs Office, issued in file EA08 1679/00, which resolves to reject the appeal and confirm charge No. 41/00 formulated by said Customs Office. It indicates that the charge was formulated in relation to an alleged difference in gas oil in the cargo declared in the cargo manifest of the ship Virginia, which arrived at the port of Campana on 15/3/00. He points out that Customs claimed a difference of 292.351 kg. between the amount recorded in the cargo manifest presented by said vessel and the resulting quantities according to the measurement in fiscal tanks. It states that the charge corresponds to VAT, additional VAT, profits and fuel transfer tax of said amount. He states that when he formulated the challenge he stated that the charge did not specify the legal regulation on which it was based; that the charge should be made to the importer; that the differences were due to the imprecision and inaccuracies of the measurement systems; that the payment of taxes was not appropriate if they had been paid by the importer; that he specifically challenged the claim for tax on the transfer of fuels. It states that the appealed resolution specifies that the shortage upon unloading is greater than the tolerance set in Annex II of Resolution 2220/90, but does not take into account that for bulk shipments, in the event of differences exceeding the tolerance of 0,6%, the import duties must be paid by the importer, and not by the carrier or its transport agent. It maintains that the particular characteristics of bulk solid and liquid cargoes have specific regulations, and that within the infraction regime, art. 97 of regulatory decree 1001/82 established regarding art. 959 inc. c) of the CA a greater tolerance when the very nature of the product, or due to circumstances extrinsic to the merchandise, is susceptible to increasing or decreasing the quantity. It reiterates that Resolution 2220/90, invoked by the Campana Customs to justify the levy, establishes a special regime for differences in bulk shipments, establishing a tolerance for tax purposes of 0,6%, but does not provide that if this percentage is exceeded, the carrier or its agent must pay import duties. It is understood that there is no evidence to confirm that there were in fact differences in relation to the quantity declared in the cargo manifest, given that the transport vessel delivered the same quantity that it received at the loading port and if there are differences it is the result of the inaccuracy of the measurements. Analyze the different measurements taken. Citation of case law. He argues that if the customs resolution establishes a tolerance of 0,6% for tax purposes, this is due to the inaccuracies of the bulk measurement systems. He points out that it is not up to the customs service to claim the fuel transfer tax created by law 23966. Provide proof. He requests that the appealed resolution be revoked and the charge confirmed by it.
II) That on pages 30/37 the fiscal representation answers the transfer that was duly conferred on it. It makes a brief summary of the facts and the grievances of the plaintiff. It denies each and every one of the statements of fact and law, as well as the accompanying documentation, which is not expressly recognized by it. It cites art. 142, par. 1 of the Customs Code. It observes that the justification of the differences in the manifests, originating from shortages that are verified at the end of the unloading, is authorized within the peremptory period established by the norm, a requirement whose non-observance it considers to have the absolute character given by the legislator, through the presumption of par. 2 of art. 142, CA. It indicates that the shortage of merchandise that was declared in the cargo manifest, gives rise to the presumption, for tax purposes only, that the same was imported for consumption, by virtue of the presumption iuris et de iure enshrined in the legal norm. The applicant maintains that the transport agent did not comply with the obligation imposed by the regulation, since he should have justified the detected shortage in a timely manner, which would not arise from the records. He refers to the scope of the General Cargo Manifest, the obligation of which arises, for the means that enter by waterway, from art. 135 inc. b) of the CA, being the same issued by the carrier and which must contain the detailed declaration of all the merchandise that the ship carries for each port of destination. He cites art. 956 inc. c) of the CA. He observes that it arises from the analysis of the administrative actions affected by the case, that the appellant would not have complied with the provisions of the applicable regulations. He adds that there is also no evidence that the importer had made the payment of the taxes for the missing merchandise but, as expressed in Note 750/00, they were only paid for the amounts entered into the fiscal tank and not for the totality declared in the MANI 1305K. He states that Resolution (ANA) 2220/90 establishes in point 12.1 Tolerance in liquids that the tolerance is set at six per thousand, and that this has been exceeded as stated in the attached proceedings. He requests that the appeal filed be rejected and the customs resolution confirmed, with costs to the appellant.
III) That at fs. 41 the case is opened for evidence, which is produced at fs. 46, 65/76, and 94/95. Once the proceedings are ready to be argued, the plaintiff makes use of this right at fs. 111/116 and the Treasury at fs. 118/121. At fs. 123 the proceedings are called for judgment.
(IV) That on page 1 of file no. 1679/00 there is a challenge to charge 41/00, formulated in relation to a difference in gas oil in the cargo declared in the cargo manifest of the vessel Virginia which arrived at the Port of Campana on 15/3/00. There are container envelopes for destinations no. 00008 IC04 000663-I; 00008 IC40000681-J; 00008 IC04 000685-N; 00008 IC04 000686-Y; 00008 IC04 000688-Z; 00008 IC06 000191-H; 00008 IC06 000224E; 00008 IC06 000225F; 00008 IC04 000733-H; 00008 IDA2 000175-A and 00008 IDA2 000177-C. On pages 39, Opinion No. 84/00 is issued, which understands that it is appropriate to charge the Transport Agent for the shortage detected, given that not all the taxes on the merchandise stated in cargo document 1305K have been paid. On pages 40/41, the charge is made with the notification certificate. On pages 58/60, Note 750/00 is included with the details of the merchandise covered by MANI 1305K that will enter the VITCO SA bonded warehouse. On pages 65/66 Ruling 03/01 is issued, rejecting the challenge filed and confirming charge No. 41/00.
V) That with respect to the merchandise missing upon unloading, I have held that the taxpayers of the tax obligation are the customs transport agent and the carrier, who, in accordance with the provisions of arts. 142 and 780 of the CA, are jointly and severally liable, without prejudice to the fact that said obligation may be extinguished in whole or in part by a person other than those mentioned above - e.g., the importer or consignee - (TFN, Chamber E, among others, «Agencia Marítima Rigel SA», dated 9/6/93); furthermore, the latter's actions for compensation with respect to the former are extra-tax (conf. TFN, Chamber E, vote of the author, among others, in «Albertella y Peretti SRL», dated 23/4/92) Tax Law, Volume III, pp. 282/283 ed. . Depalma, 1st edition, 1997-, pp. 380/381 2nd edition, Lexis Nexis, 2002-. Buenos Aires-.
So much so that Resolution No. 1900/81 of the former ANA (Practical Guide for Exporters and Importers No. 294, June 1981, p. 7272) provided that the charges for duties applicable to merchandise missing from unloading confirmed up to 22/9/81 inclusive, must be formulated to the consignees of the merchandise, and from 23/9/81 (the Customs Code in force) to the carrier and the transport agent.
That this conclusion is not hindered by the provisions of the former ANA Resolution No. 2220/90, which refers to measurement systems without changing the regulations of the Customs Code regarding the taxpayers of the tax obligation.
That in Note V No. 750/00 the amounts for which the importers paid the taxes are detailed, concluding that the importers only paid the taxes for the amount of merchandise entered into the Fiscal tank or for that documented by IC04, there being no record of the payment of taxes for the missing amount upon unloading... (pages 58/60 of the administrative records).
That this conclusion has not been undermined by the appellant with evidence to the contrary.
That from the manifest on pages 12 of the previous administrative proceedings it appears that the appellant declared that it was transporting 22.008.968 kg of diesel oil, according to the quantity certificates issued by SGS Georgia Ltd on pages 7/8 of the proceedings.
That although from pages 23 back/25 of the ant. adm. it appears that on 17/3/00 the quantity of 21.716 kg. of diesel oil (614 kg. at TK6.746.489 and 6 kg. at TK14.970.125) arrived on land, from pages 2 of the ant. adm. it appears that with the intervention of the Campana Customs agent, Daniel F. Licabue (Leg. No. 26-26617) the initial measurement upon arrival in Campana showed 5 kg. (pages 21.865.683 of the ant. adm. and pages 26 of the file). Considering this last amount, the difference is 97 kg, equivalent to 143.285% of the declared amount that exceeds the tolerance, but which I estimate is the amount that should be computed to show the real shortage.
That, in effect, in the opinion on pages 65/76 of the proceedings the expert naval engineer states that when liquid hydrocarbons are transported in ships and/or barges, four types of measurements are determined, namely: Measurement in the tanks of the refinery where the product is dispatched; measurement of receipt of the product by the ship at the loading port; measurement upon arrival of the ship at the destination port and measurement in the destination tank. He points out that oil companies admit a difference of 0,5% of the total and that, in general, the measurements taken on ships present differences with those determined in land tanks because calibration tables calculated with different methods are used. He proceeds to detail the different calibration methods, as well as the method of measuring drafts (Draft Survey).
Regarding the determination of the possible causes of the differences between the two measurements carried out in the Port of Campana, one on board the ship and another in the fiscal tanks, the aforementioned expert points out that measurements carried out with different calibration tables (ship and land tanks) cannot be compared and that the differences may be due to: errors in the readings, evaporation, non-aspirable residues on board and losses through valves in the land circuit.
This allows me to infer that the measurement made on the ship upon arrival in Campana with the intervention of the customs agent (21.865.683 kg.) should be taken into account, since the lower tonnage of the ship on land (21.716.614 kg.) could have been due to the factors mentioned by the expert, among which he explains that for diesel oil, evaporation amounts to an approximate value of 0,05% and the loss due to non-aspirable residues to 0,05%, that is, between both factors they arrive at 0,1% of the total. To this the expert adds the configuration of losses through the valves in the land circuit, which he cannot estimate statistically, but the percentage that it may represent depends on the state of the valves in the circuit in question. The expert notes that in this last case there are no losses but migrations to other undesired places that become contamination or shortages. The expert also believes that the differences observed in the various measurements are just differences on paper.
That this is not hindered by what was observed on pages 97/98 of the proceedings by the customs agent involved in the weighing, given that a mere reading of the customs measurements recorded on pages 97 reveals an unjustified difference between the measurement made on the ship and the one made on land. Therefore, the former must be followed.
VI) That taking into account the amount weighed on the vessel upon arrival in Campana (21.865.683 kg), and the tolerance of 0,6% being exceeded, it is appropriate to confirm, with the exception of what I set out in point VII - the tax settlement for the shortage of 143.285 kg, without it being appropriate to make way for the appellant's request that the charge be limited to what exceeds the percentage of 0,6% (see fs. 113 back of the file), by virtue of the fact that according to Res. 2220/90 and 2914/94 of the former ANA only the tolerance of 0,6% or 6% is computed as long as it does not exceed this limit.
That this is so, since, whatever the system by which the weighing was carried out at the place of loading, art. 142 of the CA stipulates that: 1. When at the end of the unloading it turns out that there is a lack of merchandise that had been declared in accordance with the provisions of arts. 135 and 136, the differences must be justified with the respective rectification letter or in the other forms provided for in this Code or in its regulatory provisions, within a period of two days from the end of the unloading.
2. When the differences have not been justified in the manner provided for in section 1, it shall be presumed, without admitting evidence to the contrary and for tax purposes only, that the missing merchandise has been imported for consumption, whether or not its import is subject to a prohibition, the carrier and the customs transport agent being considered jointly liable for the corresponding tax obligations.
3. The provisions of paragraph 2 shall apply without prejudice to any liability for penalties that may be imposed for any illegal acts committed.
It does not emerge from the proceedings that a letter of rectification was attached or that the deficiency was justified in any other way.
That, therefore, this shortage has been duly demonstrated, which is why the presumption juris et de jure contained in art. 142 of the CA applies.
VII) I consider that the appellant is right as to the inadmissibility of the liquid fuel tax assessment, since although art. 142 of the CA contains the presumption of importation for consumption of the missing merchandise, it does not imply that the tax obligation of that tax is configured, which requires the effective transfer for a fee or free of charge (except for the Ersatz taxable events expressly provided for by the regulations, such as, for example, the tax on consumed products), so that the payment made at the customs office is on account of the amount corresponding to said transfer of the fuel.
That, similarly to internal taxes regarding payments on account, the tax on liquid fuels affects only one of the stages of its circulation, by taxing the transfer, for a fee or free of charge, of the products of national or imported origin that it details (conf. art. 1 of the law on the matter).
Although, for the purposes of the jurisdiction of this Court, I have understood that the tax on liquid fuels and natural gas (Title III of Law 23.966 and amendments) is a tax that taxes the importation of goods in accordance with Article 9, paragraph a) of Decree 618/97 (similar to the customs taxes referred to in Article 1053, paragraph a) of the CA), I also held that in the case of imports, the temporal aspect of the taxable event is configured with the release to the market of imported fuels with respect to the payment on account provided for in Article 2 of the law on the matter (International Maritime Agency, 26/8/02). Note that the aforementioned Article. 2 provides that: In the case of imported products, those who introduce them into the country, whether or not they are subject to this tax, must make a payment on account of the tax upon clearance to the market, which will be liquidated and entered together with the customs duties and the value added tax, through collection at source by the AFIP (the highlight belongs to this vote).
It follows from the aforementioned regulations that this payment is on account of the subsequent transfer (taxable event), which did not occur in the present.
That the principle of legality of taxation being at stake, it must be inferred that the presumption of importation for consumption of art. 142 of the CA does not imply presumption of clearance to the place, as it has been distinguished between release and importation. Thus, the Supreme Court has held, with regard to internal taxes on motor vehicles and the National Highway Fund, whose taxable event occurred with the customs release of the merchandise (cfr. arts. 2º, Internal Taxes Law, and 5º, in fine, law 19.408) that it was appropriate to apply to the case the tax rule in force at the time of said release, integrated, naturally, in its quantitative aspect by the rate, since. with respect to the aforementioned taxes, art. 639 of the CA, which applies to those listed specifically in section IX, title I of this (Dumpex SA v. DGI, 13/2/1990, LL, t. 1992-B, ps. 115/116).
VIII) That, taking into account the liquidation of fs. 41 of the ant. adm. (regarding the alleged missing amount of 292.351 kg.), it appears that with respect to the missing amount of 143.285 kg., the appellant owes the sum of $15.646,70 ($7.823,35 VAT-, $3.725,40 and $4.097,95 income tax perception-), plus interest.
Therefore, I vote for:
1st) Modify Ruling No. 03/01 of the administrator of the Campana Customs and charge No. 41/00, limiting the tax requirement to $15.646,70 (fifteen thousand six hundred and forty-six pesos with 70/100), plus interest in accordance with the terms of art. 794 of the CA Costas in accordance with the due dates.
2nd) Once the CUIT number and VAT status of the expert Naval Engineer Jorge R. Abal have been accredited, the fees requested on pages 76 and 95 of the file will be regulated.
Dr. Winkler said:
That adheres to the preceding vote.
He adds that with respect to the fiscal claim in relation to the tax on liquid fuels, it should be noted that Law 23.966 has created throughout the territory of the Republic a tax on the transfer, for a fee or free of charge, of products of national or imported origin and included, as taxpayers of the tax, transporters.
However, the taxable event, in the terms of paragraph a) of article 2 -in what is of interest now- was established for imported products with clearance to the market and added that the tax must be settled together with the import duties and the value added tax.
Since this is a shortage, such dispatch to the market was obviously not configured, therefore, since the taxable event has not occurred, the tax is not payable.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the previous vote of Dr. Catalina García Vizcaíno in that it imposes the taxes corresponding to VAT, additional VAT and income tax, in relation to a shortage of 143.285 kgs. of missing merchandise, for an amount in relation to those taxes of $15.646,70.
Contrary to the opinion cited in the vote, the undersigned believes that payment of the tax on liquid fuels is appropriate in relation to the aforementioned shortage.
That, in effect, the shortage in question is an autonomous taxable event in the terms of art. 2 of the law on that tax, given its total equivalence to what the law calls any inventory difference, which in the present case occurs at the time of importation of the merchandise. The carrier who introduced the merchandise into the country or the agent representing it is responsible for said taxable event in the terms of arts. 2° and 3° of the cited law.
That the tax on liquid fuels amounts in the case at hand to the sum of twenty thousand nine hundred and eighty-three pesos and eighty-eight cents ($20.983,88), which must be added to fifteen thousand six hundred and forty-six pesos and seventy cents ($15.646,70), which will be determined by VAT, additional VAT and income tax.
That costs should be imposed according to the due dates. That is my vote.
In accordance with the above agreement, by majority, IT IS RESOLVED:
1st) Modify Ruling No. 03/01 of the administrator of the Campana Customs and charge No. 41/00, limiting the tax requirement to $15.646,70 (fifteen thousand six hundred and forty-six pesos with 70/100), plus interest in accordance with the terms of art. 794 of the CA Costas in accordance with the due dates.
2nd) Once the CUIT number and VAT status of the expert Naval Engineer Jorge R. Abal have been accredited, the fees requested on pages 76 and 95 of the file will be regulated.
Register, notify the parties and the expert, return the administrative records and file.
