Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the latter as president, in order to issue a judgment in the proceedings entitled: "ALPARGATAS SAIC v. General Directorate of Customs, s/appeal", File No. 12.185-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 15/18 Alpargatas SAIC, through its representative, files an appeal against Resolution No. 3322/99, dated 3/6/99, of the Customs Legal Procedures Department, issued in file EAAA No. 603.797/92, by which it was sentenced to pay a fine in the amount of $6.950,52 for alleged violation of art. 970 of the CA. It indicates that through DIT No. 8044/89 it documented the importation of 640 kg of organic dye, for which it requested two consecutive extensions, which were authorized. It maintains that part of the merchandise (54.214,42 kg) was re-exported and the remaining balance was imported for consumption; that after the import was authorized by the Secretariat of Industry and Foreign Trade and the corresponding taxes had been paid, as well as the additional fee of art. 18 of dec 1554/86, the customs service considered that the infraction provided for in art. 970 of the CA had been committed. It indicates that the permanence of the dye due to the suspensive destination of information expired on 30/11/91, therefore the prescription of the actions of the Treasury to demand the payment of the taxes, if there were no interrupting or suspensive events, operated on 1/1/97, but since the term was interrupted by the order that ordered the opening of the summary on 7/6/94, the new term operated on 7/6/99. It argues that the act that could interrupt the prescription again was the issuance of the condemnatory resolution at customs headquarters that is signed on 3/6/99. The Court claims that the last act was not effective and that it would not be in compliance with art. 11 of Law 19.549. It cites various articles of the regulations of the Law of Administrative Procedures and jurisprudence, from which it deduces that the Customs should have notified the condemnatory resolution within five days, and by not having done so the act did not produce effects interrupting the prescription. It adds that although the resolution is dated the aforementioned 3/6/99, it was notified on 3/8/99, that is, when the prescription had already been fulfilled. It claims to have complied with all the obligations under its responsibility. It requests that arts. 915 and 916 of the CA be applied as a subsidiary and that the contested resolution be revoked, with costs.
II) That on pages 25/32 the prosecution's representation answers the transfer that was duly conferred on it. It denies each and every one of the assertions that are not expressly acknowledged. It makes a brief summary of the facts that gave rise to the present proceedings. It points out in relation to the prescription that the date of commission of the infraction was determined at the expiration of the term of the temporary determination (30/11/91), from that date the course of the prescription was interrupted with the order that ordered the interruption of the summary on 7/6/94. It alleges that the competent authority in the contentious procedure is the Head of the Department of Customs Legal Procedures, who issued the condemnatory resolution that put an end to the case with the effect of interrupting the prescription term -art. 937 inc. d) of the CA-. It cites art. 896 CA in relation to the principle of specificity that governs the subject matter of customs infringements, so that only in the event of a gap could the Law of Administrative Procedures be used in the administrative headquarters. It points out that in the present case there would be no legal gap, given that in art. 937 of the aforementioned legal body the causes of interruption of the prescription are exhaustively enumerated. In reference to the exclusion of liability, it cites the grounds of the appealed decision. It adds that in the infringement figure in question the burden of proof of compliance with the obligations inherent to the regime of suspensive destination of import falls on the importer. It cites jurisprudence. With regard to the requested mitigation, the importer states that the law requires that there be sufficient reasons for mitigation, and that it was the importer who allowed time to pass freely in order to allocate for consumption the remainder of the merchandise that was in an irregular situation in the territory, given that the DIT No. 8044 expired on 30/11/91 and the DI No. 190.546/92 was registered on 23/6/92. The importer invokes the principle of legality and requests that the customs provision be confirmed, with costs.
III) That at page 38 it is decided to deal with the exception of prescription raised by the plaintiff together with the merits of the case and the case is declared as a purely legal case. At page 41 the proceedings are referred to Chamber E and are passed on to judgment.
IV) That on page 1 of file EAAA No. 603.797/92, there is a complaint filed for alleged violation of art. 970 of the CA, due to the lack of regularization in time and form of the merchandise imported by DIT No. 8044/89 due to the late nationalization of DI No. 190.546/92 (page 2). On page 7, on 7/6/94, the opening of the summary is ordered. On page 14, the plaintiff appears and attaches simple copies of shipping permits by which it would have re-exported part of the merchandise. On page 34, on 19/3/97, the appellant complies with the request to attach certified copies of said shipping permits. On page 89, on 2/2/99 there is a report from the Importation Division - Technical Procedures Section. At fs. 95, on 15/4/99 the plaintiff is given notice of the proceedings and at fs. 100/101 reports that it requested authorization from the Ministry of Industry and Commerce through file No. 610.195/92 to nationalize the non-re-exported balance, which once obtained was nationalized through DI 190.546/92 dated 23/6/92. At fs. 102, on 14/5/99 it is requested to prove the date of the file initiated before the SICE. At fs. 104, on 27/5/99 the appellant proves the date of initiation of SICE file No. 610.195/92. At fs. 108/109 Resolution No. 3322/99, dated 3/6/99, condemns the plaintiff for violating art. 970 CA, which is appealed in this case.
V) That from the review made in the preceding point, the delay incurred by the customs service is noted, evidenced by the fact that on 7/6/94 the summary opening was ordered and in mid-June 1999 (3/6/99) the Head of the Legal Procedures Department issued the contested resolution, to which it is added that the appellant was notified of said resolution on 3/8/99.
That art. 934 of the CA establishes that: "The action to impose penalties for customs violations prescribes after the passage of five years," this period that according to art. 935 begins to run "on the first of January of the year following the date on which the violation was committed or, if it cannot be specified, on the date of its verification."
That according to the regulations transcribed above, the five-year period mentioned above began to be computed on January 1, 1992, given that the alleged infringement would have been committed during the year 1991, specifically on November 30, 1991, the date on which the deadline for re-exporting the merchandise expired (see page 1 of file No. 603.797/92), hence the prescription period would have operated on January 1, 1 if there had been no causes suspending or interrupting its course.
However, as I will note below, the limitation period for imposing penalties for customs violations in the present case was not suspended, but rather interrupted. In fact, the interruption of the limitation period occurred with the resolution that ordered the opening of the summary proceedings dated 7/6/94.
That as I have held, among many other pronouncements of this Court, in re "SA San Miguel AGICIF" of 13/3/90 and 28/3/90, and "Yamana SRL" of 26/7/94, "in the stage prior to the filing of the appeal before the Tax Court or the contentious claim in court, the suspension of the prescriptive period with respect to the action to impose penalties for customs violations is not feasible (art. 936 of the CA).
«That the CA, when referring to the cause of interruption of the prescription of art. 937 inc. a), does not include any provision by which the new period is counted from the first of January following the interrupting event. It should be noted that art. 935 does not contemplate the case configured in the present, since it regulates the initial calculation of the prescription period, but not the period that runs from an interrupting event.
«That, unlike the above, Law 11.683, enacted in 1978 and amended, in its art. 70, paragraph a) [today art. 68, paragraph a) of the consolidated text of 1998 and amended by that law], by providing for the commission of new infractions as a cause for interrupting prescription, a rule that in that case «the new term of prescription will begin to run on January 1 following the year in which the punishable act or omission took place» (emphasis added).
"It follows from this that when the legislator intended that the prescriptive calculation would run from a date other than the configuration of the facts or omissions provided for in the regulations, he expressly provided for this."
The Supreme Court of Justice of the Nation has issued a similar ruling in re "Parquerama SA", judgment of 22/2/94.
That being so, the statute of limitations for the action has been interrupted by the order opening the summary, on 7/6/94, with the new term beginning to run from the day following the date on which it was issued.
That, had there not been another cause for interruption, the prescription would have taken effect on 8/6/99. So much so that by DGCO Note No. 110/99 of fs. 92 of the administrative antecedents, the Verification Division is requested to "URGENTLY CAREFUL PROCESSING - PRESCRIPTION 07/06/99".
Although I held in some judgments of this Court that the cause for interruption of paragraph d) of art. 937 of the CA ("the issuance of the condemnatory resolution in customs headquarters") was configured on the date of the resolution, independently of the date of its notification, a new examination of this question has led me to accept the criterion of Chamber 1 of the CN Cont.-Adm. Fed. Cap. in re "Frávega SA" , of 12/9/95 (La Ley, Volume 1996-C, p. 30).
That, in this ruling, the majority position of the Honorable Chamber considered, with abundant citations, that "the notification of administrative acts has transcendental importance in the administrative procedure (...), constituting a duty of information imposed as a burden on the administration in guarantee of the rights of individuals (...), thus linking its regime with the guarantee of defense in court, the right to effective judicial protection and the principle of good faith (...)", and that by art. 11 of law 19.549 the notification confers effectiveness to the administrative act of particular scope.
That, therefore, in accordance with the position adopted by the LPA, such majority position in the referred ruling specified that "when the administration must issue an act within a certain period, although the subsequent notification does not invalidate the act issued within the term, it does not produce legal effects - that is, it is ineffective - until the communication to the interested party is specified"; that "these general principles - except for a special rule that provides otherwise - are even more applicable "to the extent of the need to emphasize in them the principle of legal certainty and the guarantee of defense in court - within the framework of administrative procedures of a jurisdictional nature in which the administration may be empowered to act in matters included within what has been called administrative criminal law." Likewise, it considered that the expression "from the date of the condemnatory resolution" contained in art. 937 of the CA "does not authorize without further ado to grant that administrative act legal effects regardless of due notification in contrast to the general principle established in art. 11 of Law 19.549 (…) In a concordant sense, interpreting the aforementioned art. 68 of Law 11.683 [to in 1978 and mod..], although in its application to tax matters, the Supreme Court of Justice of the Nation has issued decisions (in re «Terrorism National “DGI c/Seco, Aurelia Elida”, dated September 8, 1992 and Chamber II of this Court (in re «Bordeau, Alejandro s/appeal “net worth gains” dated August 9, 1990)».
That the minority vote of Dr. Pedro J. Coviello in the aforementioned ruling of 12/9/95 understood, with the support of several citations, that he participates "in the thinking of those who assign to publicity the nature of an essential form of the administrative act, because its absence or defective implementation does not lead to "vitiating" its effectiveness, but rather, to decisively influencing its own significance to the legal world ...".
That, in line with this last position, Juan Carlos Cassagne recalls that publicity includes two species as a genus: publication and notification, and maintains that "it is not correct to affirm that publicity strictly affects the effectiveness of the act and not its validity, as the traditional thesis in the matter postulates (...) In short, the alleged lack of effectiveness of the administrative act does not indicate any other consequence than the verification that it has not come into being, because it has not yet produced direct legal effects in relation to third parties (...) The considerations set forth lead to denying the possibility that some kind of publicity (e.g. notification) constitutes a new administrative act, as affirmed by a sector of the Spanish doctrine, since publicity is always a requirement of the act that it integrates. When an individual or administrator challenges - for example - the defective notification of an act, what he is really challenging is an essential and autonomous element of the act: its form" (Administrative Law, Volume II, pp. 154 and 155. Abeledo-Perrot. Buenos Aires. 1998).
That any of these two positions adopted on the notification (as a requirement for effectiveness or validity), leads to considering that on 3/6/99 the prescription was not interrupted in this case, given that the condemnatory resolution was notified on 3/8/99, after the prescription had taken effect, at which time it became effective or valid, depending on the thesis supported.
From a criminal point of view, it should be noted that although art. 937, subc. d) of the CA uses the expression "issuance of the condemnatory resolution at the customs office" and does not expressly contemplate its notification, I understand that the interpretation followed here is the one that best fits the safeguard of individual rights, taking into account that the Supreme Court of Justice of the Nation declared "repeatedly that art. 18 of the national Constitution prohibits the analogical or extensive application of the penal law, but not its reasonable and discreet interpretation tending to the fulfillment of the purposes of its precepts. Such hermeneutics should include the discovery of the possible intention of the legislator, compatible with the words that have been used to express it, understood in the most obvious sense of common understanding ("Fallos", 306-796, consid. 11 and its citations). As indicated in the indicated precedent, the rule that imposes the strict understanding of penal norms does not exclude common sense in the understanding of the texts of said norms, in order to avoid an absurd result that cannot be presumed to be desired by the legislator" ("Relojerías Fernández SCA", 10/12/97, "Taxes", t. LVI-A, p. 60).
That, therefore, it is appropriate to make way for the prescription objected by the appellant, without being hindered by the invoked principle of specialty of art. 896 of the CA (the prosecution calls it "principle of specificity" on page 28 of the proceedings) that governs the criminal types in matters of infractions for cases of "apparent concurrence of laws", so that this principle does not alter the supplementary nature of the rules of the LPA and the CPP enshrined in art. 1017 of the CA.
I have held with regard to the principle of specialty of art. 896 of the CA that "in the event that the same matter is regulated in two provisions of the law (such as, for example, the CA) or in two laws, the special provision or law will be applicable. Two provisions are in a general and special relationship when the requirements of the general type are all contained in the special one, which also contains other qualifying conditions, by reason of which the special law has preference over the general one in its application" (Tax Law, Volume II, 2nd expanded and updated edition. Depalma. Buenos Aires. 2000). This principle applies, for example, with respect to art. 984 of the CA in accordance with what is expressed in the Statement of Reasons of the Customs Code, from which its application can be inferred with regard to criminal types and not in procedural matters. This is reaffirmed by the commentary of said Statement of Reasons on the General Provisions of arts. 894 to 901 of the CA, which states that "the fundamental principles of substantive criminal matters [it does not say "criminal procedural matters"] have been included in the "General Provisions" of customs violations" (the underlining belongs to this vote).
That if it were considered that in this case the CPP should be applied supplementarily (conf. art. 1017 ap. 2 of the CA), given that it is a matter of infraction, it should be noted that art. 142 of the CPP provides: "General resolutions will be made known to those concerned, within twenty-four (24) hours of being issued, unless the Court establishes a shorter period and they will only be binding on those persons duly notified." If it is considered that ap. 1 of art. 1017 of the CA and the provisions of decree 722/96 prevail, the notification should be made within 5 days computed from the date of the resolution to be notified (art. 40 of the LPA).
That in light of these provisions it is not understandable why, at present, the notification of the resolution dated 3/6/99 was delayed by two months. Almost two months passed until the issuance of the notices (27/7/99, according to the certification on fs. 107 back, prior to the resolution on fs. 108), and the plaintiff was effectively notified on 3/8/99 (see fs. 111/back).
I believe that the solution supported here is consistent with the principles of certainty and legal security that must be safeguarded in the proceedings, since a contrary solution could mean that the customs office would notify at any time (for example, after several years) a resolution dated before the statute of limitations began, with the consequent uncertainty as to the rights of the accused.
It should not be forgotten that the laws regarding the statute of limitations for imposing penalties have the character of penal laws (cfr. SC, «Guillermo Mirás SA», of 18/10/73, -«Fallos», 287-76-), and that the statute of limitations in penal matters is based on the fact that the simple passage of time implies «the disappearance of traces and effects of the crime [or infractions], the presumption of good conduct, social forgetfulness of the fact, etc.» (Tax Law, op. cit., Vol. II, p. 353), for which reason the interpretation cannot extend the time limits provided for in such a way as to arrive at consequences such as those expressed in the previous paragraph.
That due to the way in which I propose to resolve the sub-lite, the rest of the issues raised are not examined.
Therefore, I vote for:
Declare the action to impose penalties for the alleged offense configured in relation to DIT 8044/89 prescribed and revoke Resolution No. 3322/99 of the Head of the Customs Legal Procedures Department. With costs.
Dr. Winkler said:
That, with regard to the question of prescription, he does not share the preceding vote for the following reasons.
Art. 937, paragraph d) of the CA, a regulatory body specifically applicable to the case under consideration, provides that the issuance of the condemnatory resolution at the customs office is the event that interrupts the prescription of the action to impose penalties.
That said rule refers, therefore, to the date of the resolution and not to the date of its notification to the taxpayer, a criterion that this Court has followed, among others, in Wepaco, judgment of 11.6.85, Sperry SA judgment of 26.4.83.
That is the rule that, in my opinion, should be taken into account with precedence over what the LPA establishes regarding the effectiveness of the administrative act (art. 11).
That, even so, it should be noted that the regime of law 19.549 chose to follow the Marienhoff doctrine, who unlike Gordillo, considered the notification of the administrative act not as an element that makes its existence but its effectiveness -as it is called on the other hand in the aforementioned law- having legislated said norm separately with the essential elements or requirements of the administrative act that are regulated in art. 7.
Although it is true that it is with the notification that the resolution act becomes effective - not from the date of issue - this is so in order to consider the effects of the act for the administered party, a question that is different from the one now in view.
That the obligation to notify resolutions within twenty-four hours to which Dr. García Vizcaíno refers in her vote, by supplementary application of the CPC, in my opinion does not exist in this case, since the normative body in question refers fundamentally to crimes punishable with prison sentences and of another nature different from the infraction that concerns us now, which motivated the very short period agreed to formulate this type of notifications, for which reason such supplementary nature, in my opinion, should not be applied.
I therefore vote to reject the exception of prescription raised by the plaintiff, with costs.
Dr. Gustavo A. Krause Murguiondo said:
That the customs resolution appealed in this case was issued in a timely manner, that is, before the expiration of the limitation period established by article 934 of the relevant code, since it is dated 3.6.99. This is not affected by the date on which the appellant was notified of such resolution. Indeed, section d) of article 937 of the Customs Code provides that the issuance of a condemnatory resolution at the customs office is a cause for interruption of the tax authority's action to impose penalties, regardless of the notification thereof (According to CNACAF, Chamber II, Hector Pérez Pícaro SA, judgment dated 20/10/1994).
Once the institution of the interruption of the statute of limitations in matters of infractions is legally admitted, there is no doubt that the mere issuance of the condemnatory resolution provides the basis normally alleged for this institution, which is the existence of an act of a decisive nature that implies a clear will of the State, through the competent bodies, to pursue and not forget the illicit act. While the State demonstrates its will to pursue, through the acts of procedural relevance established in the legal norm, its punitive claim remains intact. And, reiterating what has been expressed, this is the basis usually upheld in theory that supports the legal creation of the institution of the interruption of the criminal statute of limitations. In turn, the act of notification is not required by law, since said notification has no relation to the basis of the institution of the interruption of the statute of limitations. Therefore, the conditioning of the interruption of the prescription to its notification goes beyond the legal text and ignores the forcefulness of the expression of the will to condemn contained in the mere act of issuing the relevant resolution, in relation to the institution of prescription and its interruption.
In this order of ideas, the exception raised by the appellant is inadmissible, and should therefore be rejected, with express imposition of costs.
In this state, Dr. Catalina García Vizcaíno said:
I) That, in view of the majority position which rejects the exception of prescription raised by the plaintiff and reserving my contrary opinion as I stated in my vote, I proceed to examine the substance of the issue to be resolved.
II) That the appellant on pages 16 back/17 back of the case maintains that the balance not re-exported was nationalized with authorization from the Ministry of Industry; that the tax authority does not dispute that of the 640 kg of temporarily imported dye, 54,124 kg were re-exported in a timely manner through the shipping permits detailed, nor that the remaining balance (585,786 kg) was imported for consumption through dispatch 190.564/92, for which reason the DGA only imputes its regularization out of term. Alternatively, it requests that the fine be attenuated in accordance with art. 916 of the CA or, failing that, to the legal minimum since the contested resolution applied a fine of one and a half times the updated amount of the taxes corresponding to all of the temporarily exported merchandise.
The prosecution considers that the appellant has not conclusively demonstrated that it has complied with its obligations within the legal period granted; therefore, it requests that the contested resolution be confirmed (pages 28/32).
III) That art. 970 of the CA in its section 1) provides that: "Anyone who fails to comply with the obligations assumed as a result of the granting of the temporary import or temporary export regime, as the case may be, shall be sanctioned with a fine of one to five times the amount of the taxes levied on 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 unlawful act 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 pertinent request must be made within the terms 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 in accordance with the term of art. 16 of decre. 1554/86.
That decree No. 1554/86 established a temporary import period of 360 days (art. 1), contemplating the possibility of granting "an extension, which in no case may exceed three hundred and sixty (360) additional days...", for which the respective request had to be formulated up to fifteen days before the original expiration (art. 16). Art. 28 of the cited decree obliged the beneficiaries to comply with their obligations "under penalty of the application of the sanctioning regime provided for in the Customs Code, for cases of violations of the temporary import suspension regime...".
It should be noted that the Supreme Court of Justice of the Nation has held that the fact of the subsequent conversion into a definitive court cannot produce a neutralizing effect that removes the unlawfulness of the actions of the sanctioned party, when configuring a case of expired maximum terms ("Di Tata, Emilio Ernesto", 10/2/81; Rulings, 303-141).
That art. 972 par. 2 of the CA prescribes that failure to comply with the obligation to re-export "within the agreed period affects the purpose taken into account for granting the respective regime."
IV) That according to the file of DIT 8444/89 the original expiration of the temporary importation of 640 Kgs. of dye operated on 5/11/90 and two extensions were granted with expiration on 3/5/91 and 30/11/91, respectively. On page 13 of file No. 441.045/92 and on page 89 of file No. 603.797/92 it is proven that the plaintiff re-exported on time the quantity of 54,214 Kgs. out of a total of 640 Kgs. documented by DIT No. 8044/89.
That, consequently, the nationalization of the remaining 587,790 kg of dye through DI 190.546 of 23/6/92 was untimely, without being hindered by the authorization of the Import Directorate of the Secretariat of Industry and Commerce of 12/6/92 that appears in the file of this last office. Therefore, the infraction imputed by customs was configured.
It should be added that the Secretariat of Industry and Commerce, by certificate No. 5228, authorized an extension for 180 additional days, counting from the original expiration date, and that, subsequently, by certificate No. 5757 of 3/5/91, it extended the temporary import period for 360 additional days, counting from the original expiration date for export.
That, consequently, in all cases of extensions and definitive nationalization, the SICE issued a favorable ruling, to which is added that - as I stated above - on 12/6/92 it authorized the definitive nationalization of the remainder that motivated these actions, which although it is not an exemption from sanction, constitutes a circumstance to be taken into account for the graduation of this.
It should also be noted that, according to the provisions of the second paragraph of art. 1 of ANA Resolution No. 1644/86, applications for import destination for consumption "must be accompanied by the required import authorizations (...) whose extension must be processed by the importer." In addition, the plaintiff paid all the taxes on 23/6/92 (see liquidation on fs. 107 back).
That, therefore, in use of the powers conferred by art. 915 of the CA, I propose that the fine be set at the legal minimum, that is, at $4.633,68 (see liquidation of fs. 107 back of the previous administrative proceedings).
Therefore, I vote for:
1) Partially reform the appealed ruling, setting the fine at the legal minimum, that is, $4.663,68 (four thousand six hundred and sixty-three pesos with 68/100). Costs according to the due dates - art. 9, paragraph i) of decree No. 1684/93-.
2nd) Let this document be signed by the General Secretariat of Customs Affairs, and let it be seen by the Stamp Tax and Miscellaneous Coordination Division of the DGI, for the purposes of the rate provided for in Law 22.610 and amendments.
Dr. Winkler said:
That adheres 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, by majority, IT IS RESOLVED:
1) Reject the exception of prescription raised by the plaintiff, with costs.
2) Partially reform the appealed ruling, setting the fine at the legal minimum, that is, $4.663,68 (four thousand six hundred and sixty-three pesos with 68/100). Costs according to the due dates - art. 9, paragraph i) of decree No. 1684/93-.
3nd) Let this document be signed by the General Secretariat of Customs Affairs, and let it be seen by the Stamp Tax and Miscellaneous Coordination Division of the DGI, for the purposes of the rate provided for in Law 22.610 and amendments.
Register, notify, promptly return and archive the administrative records.
