In Buenos Aires, on the 22nd day of the month of August 2001, the members of Chamber E, Drs. D. Paula Winkler and Gustavo A. Krause Murguiondo (Dr. Catalina García Vizcaíno is on leave), met with the latter of the aforementioned presiding, to pass judgment in the proceedings entitled: ARBUMASA SA, file TFN No. 12.709-A;
Dr. Winkler said:
I.- That on pages 14/18 the signature of the epigraph, through an attorney-in-fact, files an appeal against Resolution No. 066/99 (AD PDES), issued by the administrator of the Puerto Deseado customs office and issued in file EA 19-758/99, insofar as it orders the confirmation of Resolution No. 039/99, by which payment of the 1% refund provided for in Law 24.490 for export operations carried out during 1995 was denied. It notes that it had been peacefully collecting the incentives in accordance with the provisions of Law 23.018 and that, subsequently, Law 24.490 increased said refunds by one point, with retroactive effect as of 1/1.95/001, for which reason it duly requested payment from the respective customs office. The Court points out that the cause for the denial is included in the orders issued by a former National Administrator, based on the opinions contained in file EMEC 004636/96/1995. However, it maintains in its favor that the Puerto Deseado customs office is competent, that the percentage in question corresponds to operations registered during the course of 24.490 and carried out in the aforementioned jurisdiction, and that the only argument put forward for the denial has ultimately been the unconstitutionality of Law 3, an issue that, in its opinion, has been resolved in the case of the National Customs Administration s/process of knowledge, in which the National Chamber for Federal Administrative Litigation declared the appeal filed by the customs office void. It cites in its favor the provisions of art. 1995rd of the Civil Code and copious jurisprudence related to the subject at hand and the retroactivity of laws and highlights that, since these are exports formalized in 1229, the application of telex circular No. 96/1112 is not appropriate. It reserves the right to file a federal case and to file damages for illegal activity under the terms of art. XNUMX of the Civil Code, offers documentary evidence and requests that a judgment be issued in due time granting the requested payment of the refunds involved in the proceedings plus the corresponding interest up to the date of actual payment, for which purpose it is liquidated.
That on pages 24/30 the fiscal representation answers the appeal. After making a general denial of all the statements and documentation provided by the appellant that were not expressly recognized by it, it relates the facts to which the latter refers. It refers to the legitimacy of telex circular No. 1780/96 and points out that the one cited by the party is only limited to informing the party of the sanction of law 24.490. It adds that the customs administration is the administrative body in charge of the application of the legislation related to the import and export of merchandise and that art. Article 18 of the CA places the general supervision and direction of customs and other departments comprising it in its charge and states that the aforementioned law contradicts what was agreed in the Marrakech Agreement, approved by law 24.425, in the sense of not expanding the scope of the programs and progressively reducing at a rate of one point per year, until their extinction, the reimbursements for certain exports through the Patagonian ports. It offers the administrative proceedings as evidence and requests that, in due course, a judgment be issued rejecting the appeal filed, with costs.
II.- That, once the measures ordered to better provide by the instruction were complied with, at fs. 79 the proceedings are elevated to Chamber E, which passes the proceedings to judgment. At fs. 86 the parties to the case are seen, none of them having answered it. At fs. 96 the Court orders a measure to better provide, which is answered at fs. 97/98 and vta. Reporting new facts and stating in the case, at fs. 106 the plaintiff is informed that what was provided does not constitute new facts, for which reason the substantiation of such is not agreed upon, without prejudice to the fact that the allegations are taken into account for its opportunity, for which reason one is in a position to issue the present vote. That from the administrative proceedings that run by string it arises that, through the file. EA 19/99/758 the plaintiff files an appeal against Resolution 039/99 (actually it says 049/99) issued by the administrator of the Puerto Deseado customs office, which ordered the denial of payment of 1% of the requested refunds by applying telex circular No. 1780/96. The required opinion was produced on pages 10, and on pages 11/12 Resolution AD PDES No. 066/99 is issued, confirming the appealed act. File EA 19/96/059 is attached, by which the plaintiff requested the liquidation and payment of the refunds in relation to the boarding permits, a copy of which is included on pages 4/175. 1995/XNUMX (the respective files are also filed separately) which correspond, as the plaintiff claims, to exports made during the year XNUMX. The files whose submission was ordered at the investigation stage are also filed separately.
III.- That the question to be elucidated is whether or not the payment of 1% of reimbursements requested by the plaintiff with respect to operations formalized during the year 1995 from Puerto Deseado, that is to say from a Patagonian port contemplated in law 23.018, is appropriate. That first of all it should be noted that art. 1 of law 23018 established for exports whose fulfillment was carried out through Puerto Deseado an additional reimbursement of the order of 11%. In turn, art. 9 provided that said reimbursement would decrease by one point as of January 1, 1984, remaining at the resulting levels for a period of eleven years from that date and that as of January 1, 1995 the additional reimbursement will decrease at a rate of one (1) point per year until its gradual extinction.
That, in what is of interest now, and beyond the provisions of the customs telex circular, law 24.490 extended the validity of the reimbursement in question, maintaining the benefit levels applicable since 1.1.84 - that is to say, one point in our case - for all ports and customs located south of the Colorado River and for a term of five years from January 1, 1995. This law was vetoed by decree No. 843/95, having nevertheless been insisted upon by both Chambers, for which reason it was sanctioned with the force of law and promulgated on 7.12.95 (Official Gazette of 5.1.96).
IV.- That a first question must be examined and is the one that customs is arguing to not recognize the payment of the reimbursement of a point with respect to the operations in question: this is the alleged unconstitutionality of law 24.490.
It cannot be overlooked that in this case the National State attempted a merely declaratory action without any success according to the judgments, copies of which are on pages 41/43, issued by the National Customs Administration regarding the knowledge process. On the other hand, the opinion of the permanent legal service of the Ministry of Economy and Public Works and Services of 5.11.96, a copy of which is on pages 58 and 59, is not shared in any way. XNUMX/XNUMX of the case, insofar as it states that in response to the exporters' claim to make the aforementioned refunds, the State may refrain from making such payments by raising the unconstitutionality in court not only because of the grounds set forth in the Second Instance judgment issued by the National Customs Administration regarding the knowledge process, but also because, in principle, laws have been enacted to be complied with, and while it is true that the Constitution is the First Law and the active administration must abide by the principle of legality, which implies that in a state of law, the State shall be subject to the established normative order, it must do so taking care not to assume functions that, due to the division of powers, are in principle reserved for the Judiciary.
In my opinion, it is the duty of the judge, and not of the official belonging to the Executive Branch, to substitute the right invoked and to supervise in that substitution the constitutionality of a norm within the strictest part of his function. In this sense, in my opinion, the former may abstain from applying the unconstitutional norm, but the administrative power cannot do so, especially since it has generated subjective rights that are being fulfilled, in which case, out of due respect for the right of property, it must go to the Judicial Branch and do so through a process in which there is genuine litigation, without prejudice to the fact that, in principle, the State is not entitled to petition for the unconstitutionality of the norms that it dictates, although in the case under examination it cannot be overlooked that the Executive Branch vetoed Law 24.490 at the time, without prejudice to its undeniable validity as soon as the sanctioning procedures were fulfilled.
That, having clarified the above, it should be noted, however, that what the plaintiff requests is expressly contemplated in Law 24.490.
That, however - as stated by the public prosecutor's office - said law, which after having been vetoed was sanctioned with the force of law by Congress and promulgated by the Executive Branch, as indicated above, at that date, appeared to be unaware that our country had already adhered to and approved by law No. 24.425 (Official Gazette of 5.1.95) the Final Act which incorporates the results of the Uruguay Round of Multilateral Trade Negotiations and the Ministerial Decisions, Declarations and Understandings and the Marrakech Agreement.
That said treaty established the Agreement on subsidies and compensatory measures, establishing in point 3.2. of article 3 that no member shall grant or maintain the subsidies referred to in paragraph 1. In turn, in article 28 referring to the Transitional Provisions it was established that no member “shall expand the scope of such programs (referring to subsidy programs), nor extend them when they expire.
That, when the aforementioned law was passed, the Argentine government expanded the scope of the subsidy program. Note that the validity of the reimbursements provided for in Law 23.018 was extended, maintaining the benefit levels from January 1, 1984, for five years starting on January 1, 1995, decreasing by one point per year until its gradual extinction on December 31.12.99, XNUMX.
That, despite the provisions of art. 1164 of the CA, which prohibits the rulings of the Tax Court from containing a pronouncement regarding the lack of constitutional validity of tax or customs laws and their regulations unless the jurisprudence of Our Highest Court has done so, it should be noted that art. 75, paragraph 22 of the CN stipulates that treaties and concordats have a higher hierarchy than laws.
That, without prejudice to noting that in the opinion of the undersigned - the veto of the Executive Power contained in Decree No. 843/95 was wise, in light of what has been stated above, Law 24.490 does not violate the principle of normative hierarchy and the validity of international treaties contained in the National Constitution, as will be seen. That, in effect, although the prohibition of the treaty exists, mechanisms have been provided in the same by the importing member countries to adopt compensatory measures (Part V of the aforementioned Agreement on Subsidies and Compensatory Measures and, specifically, Article 19.1, which literally reads: If, after reasonable efforts have been made to carry out consultations, a Member makes a final determination of the existence of a subsidy and its amount and of the fact that, as a result of the subsidy, subsidized imports are causing injury, it may impose a countervailing duty in accordance with the provisions of this article, unless the subsidy or subsidies are withdrawn).
That, therefore, the plaintiff's claim should prosper.
That this would not be affected by the provisions of telex circular 1780/96 because, as I have ruled, it is in the specific law in which the requested benefits must be enshrined, in addition to warning that the same, not being published in the Official Gazette, lacks any effectiveness, even if it were considered a regulation (art. 103 of the LPA regl. (to in 1991).
V.- That, according to the separate shipping permits, the plaintiff had to formalize the liquidation of the refunds, that is, the payment request contemplated in art. 835 of the CA- on the dates that arise from the respective shipping permits (see receipt stamp of field 23), said dates being, in the cases under examination, all subsequent to the date of completion of loading of the merchandise.
That it is from the date of liquidation and order recorded in the shipping permits, not the date of the order processed through EA No. 19-059/96 (dated 22.3.96, v. cargo and completed by the writing of 5.4.99) nor the date of completion of the load - that the period to liquidate the interest should be counted since, as ruled in re: Badisur SRL v. National Customs Administration s/appeal rec., judgment of 13.5.94 of this Court, with a partially different composition, given the different wording that fell to art. 836 of the CA and art. 96 of DR 1001/82, it is appropriate to make both rules compatible, so that although the completion of the load is an element to be taken into account for the purposes of the admissibility of the order, it is only a necessary but not sufficient condition for the period provided for in art. 836 of the CA Indeed, although the regulatory rule establishes the starting point as the end of the load (art. 96 of dec. 1001/82), it does so in a discordant way with the provision contained in a rule of higher hierarchy, such as that of art. 836 of the CA. It must be understood, then, looking for a harmonious interpretation of the aforementioned rules that does not imply alteration of the superior rule by the inferior one, that although that aforementioned moment (the end of the load) does not cease to be relevant (necessary condition), it is with the presentation of the liquidation (provided that it complies with all the required formalities, and that the export results in accordance with what was stated) sufficient condition -, that the term referred to in art. 836 can begin to run.
That, however, the analyzed question of interests makes further examination unnecessary, in light of the conclusion I have reached, as will be seen.
VI) That, despite the measures ordered in the proceedings being partially fulfilled - from the verification of the administrative records and the box containing the various permits involved in the proceedings, it appears that the customs did not send the document N° 2731-9/95.
It is the interested party that is responsible for controlling the sending of the boarding permits for those who are petitioning, since, in the case of a tax issue, the principle of dispositiveness must be adequately balanced with the principle of ex officio impetus that informs the process before this Court.
However, given the conclusion I am about to address, such a question is also unnecessary to address, as will be seen.
VII) That, having seen the attached customs documentation, on page 96 as I said, this Court issued a measure consisting of the plaintiff reporting whether all of the merchandise that gave rise to the exports involved in this case had been processed on the company's ships or whether, in some cases, it had been produced and processed in an industrial establishment located on land.
This measure was answered on pages 97/98 and back by the plaintiff, who states that all the merchandise that gave rise to the exports involved in this case has been processed on the company's vessels, that is, on board and with a fishing permit for the 'shrimp' resource in compliance with the provisions of SAG and P Resolution No. 113 of 27-12-88. In the same statement, the appellant assumes that the industrial establishments that the company owns on land are not dedicated to the processing of the exported product, but to the cooling and maintenance of nets.
That, despite what I have been stating, which would justify the plaintiff's claim for payment, the fact that the exported product is not processed on land cannot be ignored.
That, in this regard, I have ruled that the Supreme Court of Justice of the Nation established doctrine in its ruling of 16.4.98 in re: Frigorífico Mellino SA.
That the undersigned has complied with said ruling, having stated that of particular interest are recitals 5, 6, 8 and 9 of the aforementioned judgment and the other arguments put forward by the High Court to the effect that the head of the National Customs Administration acted without exceeding his legal powers when he indicated to the various offices under his charge how they should apply the refunds provided for in Law 23.018 in operations relating to seafood products that are presented in the future, and when he instructed them to proceed to formulate the charges that may correspond in the event that undue refunds had been paid within the framework of arts. 845 and related articles of the Customs Code. This prevents the admissibility of the amparo action, since this Court has repeatedly pointed out that this route does not constitute an effective remedy to nullify a decision of a competent authority adopted in the exercise of its legal powers (…) and in the sense that: (…) Article 2 of Law 23.018 delimits the promoted region as that located south of the Colorado River and makes no reference to the maritime area (emphasis mine)
That, likewise, the High Court in such precedent not only ruled that the applicable promotional law had not included maritime space within the concept of promoted region but also established that "the power that art. 8 of law 23.018 confers on the governments of the provinces with jurisdiction in the territory located south of the Colorado River is limited to the issuance of certificates stating that the merchandise in question meets the origin requirements established in this law. Said rule does not attribute power to local authorities to interpret or establish the scope of the promotion regime established by the aforementioned federal law. It presupposes, instead, that such scope is delineated, and grants provincial authorities the power to control that the exported products comply with the requirements required for the reimbursement to be granted. He also said that: the customs service is responsible for paying export incentives (articles 835 and 836 of the Customs Code), with the corresponding power to deny claims that are not pertinent (articles 842, paragraph b), 843, paragraph b, and 1053, paragraph d, of the aforementioned legal body), as well as the ownership of the action to recover the sums unduly paid for such purposes (articles 845 to 855).
That, then, considering that the products in question do not originate from the sea, it is not appropriate to accede to the claim of the plaintiff, the fact that other export incentives had been paid by customs not being invalidated by the circumstance, due to the principle of the unavailability of tax credit and the principle of legality that governs the administration, since the State is responsible, beyond its own actions, to uphold the law, to which it must subject its actions.
That the recently stated bill added to pages 100/102 does not affect the bill, since it does not modify or repeal Law 23.018 in this capacity, and it should also be noted that the proposed art. 1 that can be read therein confirms that Law 23.018 did not assimilate products captured and processed at sea, whether territorial or not, as if they were products originating in the promoted Patagonian ports.
That being so, I vote for:
1) Reject the appeal and, consequently, confirm resolution 066/99 of the Puerto Deseado customs office, with costs.
2) The plaintiff is ordered to pay within the fifth (5th) day, the balance of the performance fee law 22.610 and mod.
Dr. Krause Murguiondo said:
Which refers to the relationship of facts contained in the preceding vote, and adheres to Recital VII thereof, as well as to its operative part.
Pursuant to the foregoing agreement, IT IS RESOLVED:
1) Reject the appeal and, consequently, confirm resolution 066/99 of the Puerto Deseado customs office, with costs.
2) The plaintiff is ordered to pay within the fifth (5th) day, the balance of the performance fee law 22.610 and mod.
Register and notify. Return administrative records in a timely manner and file them.
This document is signed by Drs. Winkler and Krause Murguiondo as Dr. García Vizcaíno is on leave (art. 1162 of the CA).
