In Buenos Aires, on the 29th day of the month of November 2004, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the first appointed Member as President, in order to resolve the case entitled Alba Compañía Argentina de Seguros SA v. DGA s/ appeal; file No. 19620-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 9/14 Alba Compañía Argentina de Seguros files an appeal against Resolution No. 428/04, by which it is required to pay $127.995,69 in taxes in its capacity as insurer of Mediterrex Arg. srl. It indicates that in the aforementioned file a complaint was filed against this firm for alleged violation of art. 970 of the CA, due to not having accredited the re-exportation of the imported merchandise through temporary import clearances Nos. 99001IT 14-444M (43.668,97 Kg.) and 990011T16-031G (6.870,09 Kg.), for which it issued the surety bonds Nos. 187.564 and 188.740. He points out that the amounts owed by customs in the form of VAT, the additional income tax and the collection of VAT were settled and cancelled by AFIP moratorium No. 93/00. He understands that it is surprising how the AFIP-DGA intends to ignore a moratorium signed for tax debts that are not within its jurisdiction, without even conducting a consultation within the AFIP. It considers that in the hypothetical case that Customs had rejected the defenses raised by the importer, based on the fact that the latter did not have the authority to subject the tax concepts claimed to a moratorium, the Resolution would be much more arbitrary, due to violation of art. 16 of the National Constitution. He adds that this unequal treatment by the tax authorities is an insult to the importing company and also to the client in its capacity as guarantor. Explains the tax moratorium regime sanctioned by Decree. 93/00, which establishes in its first article that it will be applicable to all taxes that are subject to collection by the Federal Public Revenue Administration. It is noteworthy that whatever the origin or concept collected by the AFIP, they are eligible to enter the payment facility regime of such plan, so that not only the taxes collected by the DGI, but also customs duties, fees, etc. He points out that it does not arise from the surety bonds that would have guaranteed an eventual and unmissable event at the time of their issue, such as regular importation for consumption, which he understands to be the basis for the additional right of art. 23 of decree 1439/96. Understand that Alba Cía. The Insurance Company was only liable for the taxes that levy irregular imports for consumption, established by the general rules, and up to the maximum amount indicated in the surety bond, so it would be illegitimate to include other uninsured taxes in the debt. Citation of case law. It raises the unconstitutionality of art. 23 of Decree 1439/96 in the hypothesis of considering its nature as tributary, because it affects the principle of legality. He argues that neither Decree 1439/96 nor its delegating regulation Executive Decree 2284/91 created a special customs import regime under the terms of art. 277 of the CA He warns that the Supreme Court of Justice considers that no tax burden can be enforceable without the preexistence of a legal provision framed within the constitutional precepts. Citation of case law. He understands that the National Executive Branch, by issuing the decree, created a tax in violation of the constitutional text. He argues that the sanctioning measure par excellence is the fine legislated in art. 970 of the CA and that interpretation by analogy is not appropriate. Provide proof. Reserves the federal case. He requests that the decision be revoked, with costs.
II) That on pages 22/27 back, the fiscal representation answers the transfer that was duly conferred on it. It reviews the background. It indicates that, according to the records of the file, the importer would not have fulfilled the obligations assumed as a consequence of the benefit of the temporary import regime, having configured the loss that authorizes its representative to claim the pertinent payment from the insurer. It states that decree 93/00 provides a regime of consolidation of tax debts and social security resources, not including customs tax obligations. It understands that there is no possibility of establishing a regime of payment facilities in customs matters, since it is not expressly provided for in its provisions. It cites jurisprudence. The Court states that the customs office is not obliged to carry out any consultation, since the burden of proof of compliance with the obligations inherent to the temporary import regime falls on the importer, and the latter did not carry out any steps to determine the objective truth. The Court notes that at the appropriate procedural moment when the appellant should have offered all the evidence and attached the documentary evidence in its possession, it did not do so, did not offer or attach evidence on the aforementioned compliance. The Court notes that in the event of expiry of the agreed term for its permanence or extension and the obligation to re-export not having been fulfilled, due to a legal presumption, the merchandise is considered to be definitively imported and the taxes corresponding to that destination must be paid, without prejudice to the additional payment on said taxes. It indicates that the administrative proceedings clearly show the amount that the appellant insured, which includes the additional duty. The insurer considers that it has been proven that the insurer was aware of the regime it guaranteed, and is therefore obliged to comply with its contractual commitments. It stresses that the additional right is in accordance with the law as provided for by art. 274 of the CA. It argues that, in the present case, there has been no request for import for consumption required by the law, but rather a nationalization due to expiration of the term, which implies that the respective taxes must be paid, including the additional one in question. It observes that the subsidiary claim of unconstitutionality has no legal or logical element, and therefore should be rejected. It requests that the customs resolution be confirmed, with costs.
III) That on fs. 28 the undersigned dictates a measure to better provide, which is produced on fs. 39, 41/50 and 51/75.
IV) That the administrative proceedings No. EAAA No. 603.773/00 begin on page 1 with the Complaint Report No. 311/00, in accordance with art. 970 of the CA in relation to the merchandise introduced temporarily under the protection of DI No. 99001-IT14000444M and 99001-IT16000031G which appear on pages 12/16 and 34/38 respectively, made official on 22/1/99 and 21/1/99 with a request for an extension to 21/1/00. On pages 64/65 the taxes are settled. On pages 71 the opening of the summary is ordered. On pages 78/83 back the insurer appears. On pages 89/90 the firm Mediterrex expresses its willingness to pay a minimum fine and a difference in taxes. On pages 150/151 the resolution appealed in this case is issued.
V) That the claim of arbitrariness in pages 9/10 back cannot prosper, since it is SC doctrine that the claim of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Judgments, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
That, on the other hand, when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative seat, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of the defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Room E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-.
That in this instance the appellant had the possibility of having the AFIP-DGI report on the acceptance of the taker to the regime of decree 93/00 (see pages 28 and 41/50), for which reason any customs omission in this regard was corrected.
That in this regard no imposition of costs is appropriate, given the approach made in an integrative manner with the merits.
VI) That the grievance regarding the probable nonexistence of debt due to the acceptance of the moratorium of decree 93/00 of the AFIP by the policyholder in question cannot prosper, taking into account the report on pages 41/50 of the proceedings.
That, in effect, it appears from this report that the company Mediterrex SA presented a payment facility plan provided for by decree 93/00 on 05/06/2000, requesting the amount of 86 installments, but it does not arise whether the same originated from the expiration of temporary imports registered with the Buenos Aires Customs, through temporary import dispatches DIT 001 IT 14000444/99/M and 001-IT16 000031G (see fs. 49).
It is also noted that "the plan in question would have expired as of today [21/10/04]. It is noted that the last payment dates from 22/8/01 corresponding to the 16th installment and that the remaining installments were not entered (see fs. 48).
That, given the expiration of this payment plan (not unknown to the plaintiff in the light of the notice of view on fs. 76), the debt for VAT, nor for the VAT and income tax collections, cannot be understood to be cancelled.
VII) That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise.
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
It has not been demonstrated that upon expiration of the temporary import destinations under review (22/5/00), the total re-exportation committed to was not fulfilled, in accordance with pages 62/65 of the previous administrative documents, but that they were partially fulfilled according to the details expressed there.
That, consequently, the loss insured by policies Nos. 180.075, 187.564, 188.720, 188.510 and 188.740 occurred, certified copies of which appear on pages 55/vta. and 61/71 vta. of the case.
IX) That the grievance relating to the additional duty assessed on pages 64/65 of the previous administrative proceedings cannot prosper, given that the total re-exportation of the merchandise of the aforementioned DITs was not demonstrated, for which reason the merchandise not re-exported is considered imported for consumption, having been configured by this the fact generating the tax obligation on 22/5/00 in the terms of arts. 274, 638 inc. e) and concordant of the CA.
In addition, the appellant voluntarily accepted the regime of decree 1439/96, since the guarantee provided in US dollars by DIT 001 IT 14 000444/M of US$ 544.358,87 (US$ 300.514 policy No. 187.564 - and US$ 243.844,87) and the one provided by DIT 001 IT 16 000031 G of US$ 89.320 (US$ 50.000 - policy No. 188.075-, US$ 10.320 policy No. 188.720- and US$ 29.000) are consistent with the tax settlements guaranteed under the aforementioned temporary import clearances in question. These amounts expressly include the additional 24% duty of Decree 1439/96.
That the decree under whose regime the appellant resorted, by providing the guarantee of the sub-lite , provides in its art. 23 that: When the importation for consumption of merchandise entered under this regime is authorized, in addition to the taxes corresponding to this destination in force at the date of registration of the same, an additional sum of TWO PERCENT (2%) per month calculated on the customs value of the merchandise at that date must be paid. Said sum will be calculated from the first month computed from the moment of temporary importation, covering the period that elapses until the definitive import destination is authorized and in no case may it be less than TWELVE PERCENT (12%) of the aforementioned customs value, unless said value is lower than that determined for the merchandise for the purposes of its temporary importation, in which case the latter value will be taken into account.
Considering that the import for consumption was configured on 22/5/00 and by virtue of the officialization of the DITs in question on 22/1/99 and 21/1/99, as the case may be, it was correct for the customs to liquidate the 24% additional duty which, on the other hand, was the percentage liquidated by the importing party in the body of the application for temporary import destination in question.
That with regard to the tax and not penal nature of the additional duties for temporary imports, which become imports for consumption over time, this Chamber (in a composition partially different from that of the present one) has had the opportunity to rule in proceedings entitled Kursaal SA judgment of 23/11/95.
Furthermore, it should be noted that under the terms of art. 1164 of the CA, this Court cannot rule on the claim of unconstitutionality of the aforementioned additional right, made by the appellant on pages 11 back/13 of the proceedings.
That, in summary, the guarantees granted by the additional right of 24% (see pages 12/16 and 34/38 of the previous administrative proceedings and sums insured by the aforementioned policies on pages 55/vta. and 61/71 vta. of the proceedings), imply that the plaintiff cannot turn against her own actions.
Therefore, I vote for:
1st) To confirm Resolution No. 428/04 of the 2nd Head of the Customs Legal Procedures Department, insofar as it has been the subject of the appeal. With costs.
2) To order the appellant to pay within five days the remaining balance of the fee for proceedings provided for in Law 22.610 and amendments, for which purpose the interest calculated in accordance with the terms of art. 794 of the CA shall be added to the amount of the process, taking into account the notification of 22/3/01 (pages 88/vta. of the adm. ant.) until the date of filing of this (4/6/04), in accordance with art. 1 of the aforementioned Law 22.610, under penalty that, once the amount has been determined, the General Secretariat of Customs Affairs will issue a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) To confirm Resolution No. 428/04 of the 2nd Head of the Customs Legal Procedures Department, insofar as it has been the subject of the appeal. With costs.
2) To order the appellant to pay within five days the remaining balance of the fee for proceedings provided for in Law 22.610 and amendments, for which purpose the interest calculated in accordance with the terms of art. 794 of the CA shall be added to the amount of the process, taking into account the notification of 22/3/01 (pages 88/vta. of the adm. ant.) until the date of filing of this (4/6/04), in accordance with art. 1 of the aforementioned Law 22.610, under penalty that, once the amount has been determined, the General Secretariat of Customs Affairs will issue a certificate of debt.
Register, notify, promptly return and archive the administrative records.
Drs. García Vizcaíno and Winkler signed, as the position of Member of the 14th Nomination is vacant (Conf. art. 1162 of the CA).
