In Buenos Aires, on the 11th day of the month of July, 2002, the Judges of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, met to rule in the proceedings entitled: API ANTÁRTIDA PESQUERA INDUSTRIAL SAMCFEI, file TFN No. 10.607-A;
Dr. Winkler said:
I.- That on pages 143/159 the signature of the epigraph, through an attorney, files an appeal against resolution No. 157/98 of the Puerto Madryn customs office, which rejects the appeal filed against the payment notice for charge No. 1675/98 for the sum of $554.413,50, considering it to have been filed late, and confirms the payment notice. It is aggrieved by said act insofar as it maintains that the appeal was filed in a timely manner, since the notifications of the charge that were made to the addresses of A. Moreno 1270 and Juana Fadul 48 were void since they were not rejected, as stated in the respective postal records. The defendant adds that no copy of the resolution that was notified was attached and that the defendant never established an address before the customs office at 1066 Esmeralda Street, 12th floor of this Capital, as the defendant claims. The defendant states that the defendant became aware of the charge on 25.9.98, and therefore the appealed resolution must be annulled and requests that this Court address the merits of the matter, for which purpose it provides a statement of the facts, requests the annulment of the appealed act for lacking sufficient motivation and alleges the annulment also due to the customs body's incompetence, since, in its opinion, the customs office lacks the authority to reject a benefit expressly recognized by law, when, in addition, as was the case, in its opinion, the province of Chubut certified the origin of the merchandise in question. It elaborates on the merits, offers evidence, reserves the federal case and requests that the challenged charge be promptly revoked and that it be declared that the interpretation made by customs through the Telex Circular cited does not comply with the provisions of Law 23.018.
That on pages 167/185 the public prosecutor's office responds to the notification made. After formulating a general denial of each and every one of the statements and arguments that are not expressly acknowledged in the response document, it responds to the nullity requested. It considers that the notifications were correctly served and that the violation of the right to defense in court has not occurred in the case since it can go before the courts of this Court. It adds that the customs office exercised its functions within the limits of its competence as long as the formulation of charges appears to be a reasonably implicit and integral function of administration. It then responds on the merits. On the basis of what it argues, it considers that the charge has been formulated in accordance with the law and requests that, in due time, a judgment be issued rejecting the appeal filed by the plaintiff, with express imposition of costs.
II.- That at fs. 186 it is resolved to defer the treatment of the nullities raised with the question of the merits and the case is opened to evidence. At fs. 317 the evidentiary period is declared closed, working at fs. 320 - order of 14.6.00 - in what is now of interest a measure ordered by this Judge as instructor requesting that file SA 47-098-059 of the Puerto Madryn customs be sent to this Court, which is answered at fs. 326, said file being separately ordered and having been reviewed of the actions taken as a consequence. At fs. 380 the statement made by the plaintiff is taken into account for its opportunity and the files are forwarded to Chamber E.
III.- That from the collation of the administrative proceedings, in what is now of interest to resolve, it arises that charge No. 1675/98, dated 23.5.98, was formulated to the plaintiff for the return of amounts unduly paid by the Treasury in the form of export incentives. The same was notified and the payment not having been proven, the debt note No. 002/98 was issued in this regard, dated 3.7.98. On fs. 21 of said proceedings, to which are attached EA 47 No. 481/98, by which the challenge was processed, a Fax No. 651/98 is added, containing a report from the Head of Summaries which indicates the impossibility of initiating the incident of late verification of the tax credit for the amount of the charge in question due to the statements made by the competent Court and that it would be necessary to initiate the respective executive trial for collection. All of this dated 29.7.98. On 1.10.98 the plaintiff files the appeal, which although it is processed in the terms of the additions made to the file and the opinion, without number, recorded on pages 163/164, is not expressly opened. The above, obviously, without taking into account or even analyzing what was done, as I explained, previously regarding the preparation of the executive procedure of charge No. 1675/98. On pages 165/166 the resolution in question is issued.
That from the analysis of file SA 47 No. 059/98, which is separately filed and which this Court requested as a measure, it arises in what is now of interest that on 21.5.98, that is to say two days before the charge was formulated for the return of amounts allegedly incorrectly paid as refunds, the same customs office - that is to say the Puerto Madryn customs office - decided to instruct a contentious summary against the now appellant for alleged infringement under the terms of inc. c) of art. 965 of the CA. Said summary continued practically in parallel with the one corresponding to the formulation of the charge, the intended execution of the same and its challenge, entering into conditions to put for argument at fs. 310 of the same (II Body), so that at fs. 311, on 9.9.99 the file is put for argument and the order is notified with the notice that appears at fs. 312 and vta. At fs. 313 the file is required in opinion, working at fs. 314, dated 30.12.99, that is to say, well before the request made by this Judge to send the file to the Tax Court (see fs. 320, order of 14.6.00 and letter at fs. 321) an act of the legal advisor of the Puerto Madryn customs office that literally reads: The present proceedings are reserved, in the terms of Note 236/99 (DV JRCR) - Opinion No. 1503/99 (which is not attached) pending the ruling of the Tax Court of the Nation in the cases of challenge that are processed there. Note that.
IV.- That beyond what I have held in Valenciana Arg. José Aisemberg y Cía SAICIF, a minority judgement of this Chamber on 12.8.92, that the meaning of requiring the express pronouncement of the National Customs Administrator with regard to the substantial and not only formal admissibility of the appellant's claim in order to enable the instance of this Tax Court is intended for the tax administration to previously issue a ruling on the matter that is within its original jurisdiction, which does not prevent such pronouncements from being ignored in certain cases, e.g. when going back to the demand for a new one can practically be shown as a useless ritualism, in this case, as I will explain, the issue requires another analysis, taking into account what has been noted regarding the procedures printed erroneously by the Puerto Madryn customs, as will be seen.
It is true that the case has been opened for evidence and that evidence has been produced. Under such conditions, this Court would not normally be authorized to close its jurisdiction, since this would be detrimental to the elementary principles that protect the right to due process. However, in this case, the following must be taken into account:
1°) At the same time, but in different proceedings, the customs office filed a charge, demanded payment, unsuccessfully attempted to formalize the late verification of the tax credit in the preventive bankruptcy of the firm and opened a summary. It should be noted, as I did, that in this case the violation investigated in the contentious summary that was requested to be examined as a measure is the one provided for in section c) of art. 965.
2°) Once the charge was challenged, the Puerto Madryn customs office processed it and issued a final act, which is the one appealed here, rejecting the challenge as untimely and confirming the charge.
3°) The customs office decided ex officio to suspend the processing of the case, which was in the argument stage, as a result of what was decided in the present case.
That art. 965, inc. b) sanctions anyone who fails to comply with the obligation that conditioned the granting of an incentive for export and, being an infraction, it must obviously be investigated through the procedure contemplated in Chapter Three of Title I of the Procedures Section, among whose rules is art. 1112, inc. b) (in conjunction with art. 1094, inc. d), referring to the resolution that orders the opening of the summary), applicable in this case, as will be seen.
This rule establishes, in what is now of interest, that the administrator, when issuing a resolution, must expressly pronounce himself on the taxes that are owed by the responsible parties. Although what the customs is claiming here are not taxes but refunds that were allegedly underpaid, the extensive application of this rule to the case under examination is undoubtedly possible, for elementary reasons of common sense, since some of the principles that must be applied in customs administrative procedures are the general ones in force in jurisdictional processes: that of concentration and that of simplicity of the same. It does not seem reasonable or logical that, if the administrator of the customs office now involved is competent to rule both on refunds and on infringements, and furthermore considers that the two procedures involving these issues - the appeal and the procedure for infringements - are prejudicial, as he seems to have assumed when suspending the second of them (see the suspension ordered ex officio on page 314 of the summary mention, Section II), he does not intervene from the beginning by accumulating both procedures, instead of processing one and suspending the other, as occurred in this case.
There is no doubt that both procedures are in principle prejudicial, that is, beyond the aforementioned provision of the Customs Code, since those processes in which a decision is made in a binding manner are prejudicial, since there is an ontological relationship between its elements (Barrios de Angelis, Introduction to the process, De Palma, 1984. See also the doctrine of my vote in re: Incobe, judgment of this Chamber of 9.9.93, file TFN No. 6423-A, among others).
For the reasons stated above, in paragraph a) of article 1053 of the CA, when referring to the regulated challenge procedure, taxes whose liquidation is contained in the condemnatory resolution issued in the procedure for infractions are excluded from it.
V.- That it is supported by the fact that in the chapter of the CA that regulates the action of the Treasury to recover amounts unduly paid in the form of export incentives, art. 853 has contemplated in paragraph a) that the opening of the summary in the case in which the existence of a customs offense is investigated suspends the prescription of the fiscal action, said suspension being computed until a decision is made that enables the exercise of the action when it is subordinated to that decision.
The opposite would imply that when this Court decides, where appropriate, on the merits of the issue raised, it would practically implicitly be resolving issues similar to those that must be resolved in the contentious summary, since they are related and prejudicial, which is not consistent with the principle that the primary function of the customs administrator to resolve issues within his jurisdiction must always be respected.
Therefore, and without prejudice to the actions taken, I vote for:
1°) Declare null and void Resolution No. 157/98 by which the administrator of the Puerto Madryn customs resolves to reject as untimely the challenge procedure initiated by the appellant herein against charge No. 1675/98 and confirm said charge.
2°) Order the aforementioned customs office to accumulate file EA-47 No. 481/98 to the summary SA 47 No. 98-059 and to take into account for the argument stage all the actions taken by the appellant in the challenge and in the present case, and to send a new notification to the same, so that in the argument of the pending summary it can also do so with respect to the evidence produced in the proceedings, taking into account that at the time of making a decision, the administrator of the Puerto Madryn customs office must, where appropriate, rule on the export incentives paid and whose repetition is sought, that is, with respect to charge No. 1675/98. All of this by virtue of the manner in which it is resolved.
3°) To this end, the General Secretariat of Customs Affairs, let this be final, shall itemize the pieces contained in pages 10/142, 143/161 199/311, 340/342, 369/376 and 378/379, ref., of these proceedings, which shall be promptly sent to customs by official letter, leaving due record in the proceedings, after extracting copies of pages 143/161 which shall be added in substitution of those itemized, previously certified.
4°) At the same procedural opportunity, the General Secretariat shall return file SA 47 No. 98-059 and other administrative proceedings.
5°) The appeal is without costs, in light of the result achieved, based on the entirely ex officio reasoning that is introduced to resolve, since based on the above and the provisions on page 314 of the customs summary by the legal advisor, the Puerto Madryn customs could consider itself entitled to process the files and resolve as it did.
Dr. Krause Murguiondo said:
I substantially agree with the preceding vote.
Dr. García Vizcaíno said:
I substantially agree with Dr. Winkler's vote.
Pursuant to the above vote, it is unanimously RESOLVED:
1°) Declare null and void Resolution No. 157/98 by which the administrator of the Puerto Madryn customs resolves to reject as untimely the challenge procedure initiated by the appellant herein against charge No. 1675/98 and confirm said charge.
2°) Order the aforementioned customs office to accumulate file EA-47 No. 481/98 to the summary SA 47 No. 98-059 and to take into account for the argument stage all the actions taken by the appellant in the challenge and in the present case, and to send a new notification to the same, so that in the argument of the pending summary it can also do so with respect to the evidence produced in the proceedings, taking into account that at the time of making a decision, the administrator of the Puerto Madryn customs office must, where appropriate, rule on the export incentives paid and whose repetition is sought, that is, with respect to charge No. 1675/98. All of this by virtue of the manner in which it is resolved.
3°) To this end, the General Secretariat of Customs Affairs, let this be final, shall itemize the pieces contained in pages 10/142, 143/161 199/311, 340/342, 369/376 and 378/379, ref., of these proceedings, which shall be promptly sent to customs by official letter, leaving due record in the proceedings, after extracting copies of pages 143/161 which shall be added in substitution of those itemized, previously certified.
4°) At the same procedural opportunity, the General Secretariat shall return file SA 47 No. 98-059 and other administrative proceedings.
5°) The appeal is without costs, in light of the result achieved, based on the entirely ex officio reasoning that is introduced to resolve, since based on the above and the provisions on page 314 of the customs summary by the legal advisor, the Puerto Madryn customs could consider itself entitled to process the files and resolve as it did.
Register, notify, promptly return the added administrative records and file them.
