EXCEPTION OF INCOMPETENCE. CHALLENGE AGAINST TAX SETTLEMENT. ACCEPTANCE OF PAYMENT FACILITY REGIME. REFRAMEWORK.
In Buenos Aires, on the day of July 2003, the Judges of Chamber "E", Drs. D. Paula Winkler and Catalina García Vizcaíno (Dr. Krause Murguiondo is on leave), met to rule on the case entitled: "ALBA Cí A. ARG. DE SEGUROS SA s/ rec. of appeal", file TFN No. 16.904-A;
Dr. Winkler said:
I.- That these actions arise as a result of the resolution of 2/6/03 of the "G" Chamber of this Tax Court, which orders their referral, given that the 13th Nomination Chamber, in my charge, "processed file No. 7694-A by which the plaintiff appealed the decision in ruling No. 083/95, issued in administrative file No. SA 17-95-008."
I refer to the account of the facts and the proceedings in the case to date of said Chamber, for the sake of brevity.
II.- That this case is about resolving the exception of incompetence, raised by the fiscal representation, since it understands that this Jurisdictional Body is not competent to decide what is being questioned.
That the plaintiff, at pages 57/58 and back, appeared before the Córdoba customs office filing a challenge against the payment notice for the sum of $189.409,82 (see pages 56 of the previous administrative proceedings) "in the terms of art. 1053 and subsequent articles of Law 22.415" (see pages 57 of said proceedings). She also formalized her recognition and partial settlement of the tax debt and settled what she considered to be owed in the terms of Decree No. 93/2000. After the intervention of the competent bodies of the Córdoba customs office, at pages 90, the Head of the Córdoba Agency of the DGI sent a note to the Trustee of the taker informing him that “in accordance with the provisions of section a) of article 3 of Decree 93/00, those who have been declared bankrupt, in accordance with the provisions of Laws No. 19.551 and its amendments or 24.522 as appropriate, are excluded from being eligible for the tax debt consolidation regime and exemption from interest, fines and other sanctions. Therefore, the request for acceptance with respect to all of the consolidated obligations is REJECTED in accordance with the provisions of article 25 of General Resolution No. 793/00 (AFIP).â€
That on fs. 94 the Head of the Customs Division of Córdoba issues Provision No. 35/02, by which it is resolved to notify the now appellant of the decision made by the DGI. On fs. 102 back there is proof of delivery of the requested copies of the administrative proceedings, which is why it is considered notified on fs. 103. It is against this decision that the plaintiff is appealing before this Tax Court.
III.- It is true that the plaintiff filed an appeal against the tax notice. However, in said document, it conceded and made partial recognition of the sums owed for the purposes of availing itself of the payment facility regime contemplated in decree no. 93/00.
That, beyond the qualification made by the plaintiff in his presentation on pages 57/58 and back of the previous administrative proceedings, it is evident that with it he attempted to benefit from the tax consolidation regime contemplated by the aforementioned decree.
That the AFIP is the enforcement authority of said regime as provided for in art. 20, which consequently issued General Resolution No. 793/00. The same, in its art. 25, establishes that the acceptance “that is affected by exclusions of a subjective nature, will give rise to the rejection of the application and the initiation or prosecution of administrative or judicial actions by this Agency†(emphasis added).
IV.- That, in light of the above, since this Tax Court does not have the power to enforce its own judgments, it is appropriate to uphold the exception raised by the tax representation.
That this is so, also, because this Court cannot rule when the executive procedure has been prepared in the terms of art. 1122 of the CA
That the rejection of an application for payment facilities, even if it is for the payment of a debt that became final due to a previous ruling by this Court and the Appellate Court, which confirmed it, does not constitute one of the acts that are reviewable, in accordance with the provisions of art. 1132 of the CA, by this Body.
That the implicit rejection of the challenge that the plaintiff claims to have filed in its presentation on pages 57/58 of the previous administrative proceedings is also not reviewable by this means, since, as I said, the issue raised here refers to the execution procedure - preparatory stage.
Accordingly, I vote to uphold the objection raised by the Treasury, with costs. Considering that the Court is declared incompetent to hear the case, in order to adequately preserve the right of defense in court, since this Jurisdictional Body must refer the proceedings to the body it deems competent, the appeal filed is reframed as the appeal contemplated in art. 74 of decree No. 1397/79 and its amendments, regulating the tax procedure law No. 11.683 (edited in 1998 and amended). To this end, the General Secretariat of Customs Affairs, may this be final, refer the case to the General Director of the General Tax Directorate of the AFIP, in order for him to resolve the petitioner's claim through the means provided for in the aforementioned rule, leaving a record of the referral in the records of this Body.
Dr. García Vizcaíno said:
I agree with the preceding vote.
Pursuant to the foregoing vote, IT IS RESOLVED:
1.- To uphold the exception raised by the Treasury, with costs.
2.- Reclassify the appeal filed as an appeal contemplated in art. 74 of decree No. 1397/79 and its amendments, regulating the tax procedure law No. 11.683 (to 1998 and amendments)
3.- By the General Secretariat of Customs Affairs, let this be final, let the case be forwarded to the General Director of the General Tax Directorate of the AFIP, so that he may resolve the petitioner's claim through the means provided for in the aforementioned regulation, leaving a record of the referral in the records of this Agency.
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This document is signed by Dr. Winkler and Dr. García Vizcaíno as Dr. Krause Murguiondo is on leave (art. 1162 of the CA).
