In Buenos Aires, on the 26th day of August 2002, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the latter presiding, in order to render judgment in the case entitled: AGENCIA MARíTIMA INTERNACIONAL SA v. Directorate General of Customs s/appeal, file No. 16.714-A
Dr. Catalina García Vizcaíno said:
I) That on pages 13/16 back, Agencia Marítima Internacional SA files an appeal against Ruling No. 59/01, issued on 5/11/01 in file EA08 No. 2193/00, by which it is ordered to pay $11.197,85 for unpaid fuel transfer tax. It states that the investigation began due to an alleged difference in gas oil in the cargo that the ship Antares I received in the unloading area (from the ship Belguardian) that arrived at the port of Campana on 29/1/00. It adds that said customs office issued charge 56/00 for the sum of $19.033,34 for VAT, additional VAT, profits and fuel transfer tax for an alleged difference of 78.189 kgs. of that product in relation to the quantities declared in the cargo manifest presented. It indicates that in the contested resolution, the Administrator of the Campana Customs highlighted that the importers paid the taxes for the value of the merchandise in the manifest, except for those corresponding to the tax on the transfer of fuels; that with respect to the latter, the taxable event in its importation is perfected with the release to the square and that, according to art. 142 of the CA, the missing merchandise is presumed imported for consumption, for which reason it resolved to modify charge No. 56/00 appealed in the case. It bases its grievances. It offers evidence and requests that the appealed charge be revoked.
II) That after the pertinent notification to the fiscal representation, the latter answers it on pages 32/34. It summarizes the facts that gave rise to the appealed resolution. First of all, it raises the exception of formal inadmissibility. It points out that the jurisdiction of the Court is determined by arts. 1025 par. 1º , 1132 par. 2º , 1145 par. 1º and 1053 par. d) (sic) of the CA. It notes that art. 1025 establishes that the Court shall be responsible for hearing and deciding, among others, the appeals against the Administrator's resolutions in the challenge procedure, processing through said procedure the challenges that are formulated against the acts by which customs duties are liquidated. He maintains that the control exercised by the Court over Customs is jurisdictional and is developed through the appeals brought before it, but it has no power of supervision over those acts carried out by Customs and which, according to the law, are not those that can be brought to its attention by way of appeal or claim. He cites jurisprudence. He maintains that neither the principle of informality in favor of the administered nor that of procedural economy are applicable since it cannot be granted such magnitude as to suppress an entire legally established procedure in its name. He reserves the federal case and requests that the attempted appeal be rejected, with costs.
III) That on page 35 the pertinent notice is given to the appellant, who answers it on page 40/back. First of all, the appellant states that there are no apparent grounds for considering that the appeal is not formally admissible or that the Court is incompetent to hear the case. The appellant considers that the claim is inadmissible because the Campana Customs Office made a charge in the amount of $19.033,34 in taxes, which was challenged under the terms of art. 1053 inc. a) of the CA. The appellant adds that in its resolution of 5/11/01, the Customs Office decided to partially accept the challenge based on the fact that part of the taxes claimed had already been paid and ordered the appellant to pay the sum of $11.197,85 in fuel transfer tax (ITC) which it considers unpaid. The defendant points out that he filed an appeal against this resolution under the terms of art. 1132 of the CA, since this article establishes that the only recourse against the administrator's resolutions issued in the challenge procedures provided for in art. 1053, paragraphs a, b, c, d and e is the appeal before the National Tax Court. He adds that the same rules cited by the defendant do nothing more than validate the admissibility of the appeal filed. He requests that the objection raised be rejected, with costs.
IV) That on page 41 the exception of formal inadmissibility as a prior and special pronouncement is declared, the files are elevated to the Court and called for judgment.
V) That on page 1/3 of file EA08-002-2193, Agencia Marítima Internacional SA, on 31/8/01, challenges, under the terms of art. 1053, inc. a) of the Customs Code (see page 1), charge 56/00 formulated by the Campana Customs for a total of $19.033,34. On page 14, there is Note Regs. 26/00 dated 29/2/00. On page 15, Part No. 5 is listed, which reports the existence of a difference of less than 78.189 kgs. of diesel oil. On page 32, there is opinion No. 102/00 dated 12/6/00, which considers that the shortage is within the legal tolerance, representing 0,98%. On page 33, the calculation of the taxes that tax the importation for consumption of the missing merchandise is reported -VAT, additional VAT, Profits and ITC-. On page 34, charge No. 56/00 appears. At the bottom of the charge it states that: All procedures must be carried out before this Customs Office in accordance with Arts. 1053 and related articles of the CA. On page 37, on 31/10/00, it is ordered to begin the challenge procedure in accordance with art. 1053, et seq. and ccdtes. of the CA, in accordance with charge No. 56/00 formulated to the aforementioned agency. On page 47/59 show the folders for customs documents No. IC06000084X, IC06000083H, IC06000087L, IC06000090F, IC06000094J, IC06000101V, IC06000102W, IC06000106D, IC06000057X, IC06000054F, IC06000055G, IC06000079M and IC06000080E. On pages 61 there is Note No. 669/01 dated 31/10/01, which rectifies the liquidation made on pages 33. On pages 62/63, Ruling No. 59/01 is issued, which is appealed in this case.
VI) That it is appropriate to analyze the admissibility of the exception of formal inadmissibility raised by the tax representation.
That art. 1025 of the CA establishes that the Tax Court of the Nation shall be responsible for hearing and deciding on appeals against the administrator's resolutions in the challenge procedure, with the exception of the cases provided for in art. 1053, paragraph f)…
That the procedure initiated in this case has been deduced in the terms of art. 1053 inc. a) of the CA (see pages 1 and 37 of the administrative antecedents).
That in the first paragraph of the Consideration of ruling No. 59/01 it is expressly stated that: fs. 37 proceedings are instructed, in accordance with the challenge procedure in accordance with art. 1053 inc. a) of the Customs Code - law 22.415.
That the Administrator of the Campana Customs has issued the appealed resolution in use of the powers conferred in art. 1065 of the CA and resolves in art. 1 to modify charge No. 56/00, given that the taxes on the missing merchandise have been partially paid and the firm is required to pay the sum of $11.197,85 as unpaid ITC.
That this notice is the one appealed by the appellant in the terms of art. 1132 ap. 2 of the CA and within the period established by art. 1133 of the aforementioned ordinance.
That, on the other hand, the tax on liquid fuels and natural gas (Title III of Law 23.966 and amendments), by including within the taxable events their transfer for a fee or free of charge of products of imported origin, is still a tax that taxes the importation of merchandise in the terms of art. 9, paragraph a) of Decree 618/97, similar to the customs taxes referred to in art. 1053, paragraph a) of the CA. Note 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 art. 2 of the law on the matter, while its art. 3 mentions, among the taxable persons, the importers. Indeed, the aforementioned art. 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.
That being the case, the exception raised by the tax authority must be rejected, with costs.
Therefore, I vote for:
Reject the exception of formal inadmissibility raised by the public prosecutor. With costs.
Dr. Winkler said:
That section a) of article 2 of Law 23.966, referring to liquid fuels, establishes that the moment of perfection of the taxable event is the clearance to the market and establishes that the tax in question must be liquidated and paid together with the import duties and VAT through withholding tax at source to be applied by the National Customs Administration.
Consequently, it is appropriate to adhere to the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
Reject the exception of formal inadmissibility raised by the public prosecutor. With costs.
Register, notify and return the files to the 15th Nomination Committee.
International Maritime Agency SA vs. DGA on appeal, file No. 16.714-A of 26/08/2002
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