As we know, it is common for certain customs operations to provide guarantees on the respective taxes. Such guarantees are provided through policies from insurance companies that operate in the field of foreign trade. That is, the operator knows the required conditions and so does the insurance company; so that at the time of establishing the guarantee, both parties do so based on what they know and the risk they assume, through their own actions.
However, there have been arguments questioning the legality of charging certain taxes, such as additional VAT and profits, and about the interest and the application of foreign currency. In such cases, it is worth at least thinking about the execution of guarantees by applying dollarization to the supplementary determinations that may be considered to exceed the customs taxes themselves and that would be applicable in subsequent marketing. The same then, with respect to the applicable rate for its update. In this sense, there are those who question it, arguing that additional VAT and profits are not part of the universe of customs taxes and therefore would not tax imports for consumption, which means they could not be required at the time of the execution of the guarantee. Likewise, in the face of the application of a rate that may be extremely burdensome, meaning an excessive enrichment of the State; especially in contrast to what the State assumes when it is time for the taxpayer to pay the refund. Even more so when the discussion centers on whether the liquidation carried out on the capital should be in dollars or pesos to determine the calculation of interest.
Nevertheless, it is worth bearing in mind that Article 20 of Law 23.905 is still in force, stating that taxes levied on imports and exports are determined in US dollars; that in the interpretation of Article 635 of the Customs Code, import duties are also understood to include rates, contributions and other taxes with special effect on imports and that the monthly update rate, in accordance with the provisions of Article 794 of the same legal body, corresponds to the Ministry of Finance. This update may be excessive, but the rules that support the mechanism for its determination are known in advance by importers and insurance companies, which at the time of contracting the policy commit themselves based on said rules and their own acts, accepting the rules in force at the time of assuming the obligation before the customs service.
Conclusion
The determination of the interest rate is set based on the legal powers that support it, without this implying, in my opinion, the franchise for an abusive exercise of said powers; but to discuss its legitimacy after assuming the obligation is improper in relation to the theory of the own acts. The same applies to the universe included within the import duties. That is to say that consequently, it will be necessary to verify in each specific case the measure of reasonableness or unreasonableness in the application of the norms and their consequences, plus the factual demonstration of the damage, to consider and give merit to the violation of constitutional guarantees.
By: Dr. Guillermo Sueldo, Member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
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