The Federal Public Revenue Administration (AFIP) has modified the procedure to compensate shipments of merchandise with deficiencies, through the General Resolution 5564/2024. This update, published today (16.09.2024) in the Official Gazette, is framed within the provisions of Chapter XI of Section VI of the Customs Code, which covers articles 573 to 577.
The new regime, detailed in the Annex I of the resolution, introduces specific guidelines to optimize and streamline the corresponding procedure, with the aim of ensuring greater efficiency in the resolution of these situations. In detail:
Application. Prior to the officialization of the final destination for import or export of goods that are under the regime of shipments with deficiencies or that do not comply with the contracted specifications, the interested party must submit an authorization request. Said request will be addressed to the Technical Division of the Technical Department of Import or Export, as appropriate to the destination involved in the procedure.
Shape. In the Customs Procedures Computer System (SITA), the procedure “Customs Electronic Multi-Note” (MUELA), sub-procedure “10083 – Imported Merchandise with deficiencies. Its replacement” or “10084 – Exported Merchandise with deficiencies. Its replacement”, as appropriate, must be selected, complete the required data and attach the following digitalized documentation: a) Note of acceptance of the regime stating the reasons that justify the request and the term agreed with the buyer/seller to replace the merchandise. The original customs destination that gives rise to the request must be reported in it, which must be duly digitalized in accordance with the provisions of General Resolution No. 2.721 and its amendments. b) Contract stating the obligation to replace for reasons of technical guarantee, accompanied by a technical report, which will have the character of a sworn statement. In the event that it is impossible to attach the aforementioned contract, this may be made up for by the seller's acknowledgement of replacing the defective merchandise, in accordance with the usual clauses of international trade. c) A note from the buyer, expressing his disagreement with the merchandise originally imported or exported, stating that the detected deficiency makes it unusable or that it does not comply with the clauses of the signed contract. To this end, he must attach the evidence proving this.
TraducciónIn the event that the documents indicated in points b) and c) are written in a foreign language, they must be duly translated by a national public translator and legalized before the corresponding college.
In cases where export benefits have been received, proof of their return must be provided as a requirement for their authorization. When their collection is pending, the Technical Division of the Export Technical Department will request the cancellation of the liquidation to the customs office of registration of the original export destination.
Procedure and Competent Authority. Applications will be analyzed by the technical divisions of the Technical Departments of Importation or Exportation, as appropriate. The aforementioned departments will be responsible for authorizing or denying the applications by means of a reasoned administrative act. Prior to the authorization or denial, the Technical Division of the Technical Department of Importation may entrust the verification of the defective merchandise to the customs of the place where it is located and record the defect in the material and/or manufacturing or the reasons alleged for making the substitution, as appropriate.
Validity of authorization and modifications . The authorization will have a validity of one hundred and eighty (180) days, period in which the operation must be fully completed. The resolutions adopted by application of this regime will be notified to the applicants through the Customs Electronic Communication and Notification System (SICNEA) - established by General Resolution No. 3.474 and its amendments - and communicated to the customs office of registration of the destination that gives rise to the substitution through the Electronic Document Management System (GDE).
Verification. When the selectivity channel assigned to the destination determines a physical inspection of the merchandise, the parameters established in sections 1 and 2 of article 85 of Decree No. 1.001/82 and its amendments must be verified, depending on whether the merchandise is to be replaced or is defective.
WarrantyIn the cases established in point 3 of article 85 of Decree No. 1.001/82 and its amendments, a guarantee must be established for a period of one hundred and eighty (180) days - a period in which the customs operation must be fully completed - under the conditions stipulated by General Resolution No. 3.885 and its amendments. The amount of the aforementioned guarantee must be equivalent to the amount of taxes that tax the destination that is carried out in the first place.
Exempt from guaranteeShipments documented in accordance with the provisions of the unnumbered article following article 576 of the Customs Code are exempt from the obligation to provide a guarantee.
Reimport or reexport of merchandise with defects or that does not conform to the contracted specifications. When the interested party has opted for the procedure provided for in the unnumbered article following article 576 of the Customs Code, he must state his intention at the time of requesting the authorization. During the verification provided for in point 3 of Annex I (verification), the customs service will confirm that the merchandise has not been manufactured, repaired or used in the country of import or export. Notwithstanding this, the use of the merchandise will not prevent its return in the event that it has been indispensable to verify its defects or other circumstances that have motivated its return. This modality will apply for the case of imported or exported merchandise, as long as its value does not exceed three thousand United States dollars (USD 3.000) and whose re-import or re-export occurs within the warranty period established by contract, and at most within two (2) years from the date on which the merchandise was released to the market or to a foreign destination.
Refund of taxes. If applicable, the interested party may request the refund of taxes paid at the original destination once the merchandise has been returned and provided that he/she has expressed acceptance of this modality at the time of requesting the authorization, demonstrating that he/she made the payment of the tax obligation.
Destruction or abandonment of the merchandise to be replaced. The aforementioned technical divisions of the Technical Departments of Importation or Exportation - as appropriate - will also intervene in the analysis of the assumptions provided for in section 1 of article 577 of the Customs Code and may authorize or deny the abandonment, destruction, rendering useless or exemption from re-importation of the merchandise, as appropriate.
When the abandonment of the merchandise in favor of the National State is required, prior consultation must be made with the Customs Legal Advisory Office to determine whether it is acceptable.
In cases where a request has been made for exemption from re-importing defective goods, the interested party must state in his/her request the reasons that give rise to said requirement and provide supporting documentation that proves that the re-export was not authorized by the authorities of the country of destination through documentation issued by the corresponding Agency or regulations of that country that justify it. When the request is based on the fact that the return is uneconomical, the exporter must provide a cost analysis that justifies said requirement.
When this has been authorized and within the period granted for this purpose, the interested party will proceed - at his own expense - to render the merchandise unusable or destroy it under the supervision of the customs service.
Destruction abroad. If the destruction of defective goods is carried out abroad, a certificate from the competent technical or control body for the goods in question must be submitted (e.g.: the body responsible for health matters). When no official body of the country where the defective goods are located is involved in the destruction, this situation must be accredited by the interested party through a public instrument, legalized by a Consulate or apostilled in accordance with Law No. 23.458 (Hague Convention of October 5, 1961).
Declaration of customs destinations. Customs import or export destinations registered in the MALVINA Computer System (SIM), under the regime established by articles 573 to 577 of the Customs Code, must be declared in accordance with the procedure detailed in Annex II of General Resolution No. 5564/2024.
Repeals. Point I. Free self-assessment LM-SUS “autoloqlibreexp advantage code” of section 2 of Annex V of General Resolution No. 1.921 and its amendments is hereby repealed and Resolutions Nos. 1.869 (ANA) of July 26, 1993 and 10 (DGA) of January 28, 1998, External Note No. 39 (DGA) of May 6, 2009 and General Instruction No. 7 (SDG TLA) of May 20, 2016, are repealed as of the date of entry into force of this document.
Validity. The General Resolution is in force immediate, and will be applied in accordance with the implementation schedule Available on the microsite "Import or Export Regime to Compensate Shipments of Merchandise with Deficiencies" of the official website of the Federal Public Revenue Administration (https://www.afip.gob.a)
Articles of the CA cited in the General Resolution
Since General Resolution No. 5564/2024 modifies the procedure related to the Compensation Regime for Shipments of Merchandise with Deficiencies, established in Law 22.415 (Customs Code), the relevant articles are highlighted below to facilitate their understanding.
Art 573: When, by virtue of a guarantee obligation, the import or export of certain merchandise is intended to replace another identical or similar merchandise with material or manufacturing deficiencies, said destinations are exempt from the payment of taxes that burden them, from the corresponding negotiation of foreign currency and from the application of prohibitions of an economic nature, provided that the conditions determined by the regulations are met.
Art 574: Imports or exports carried out for the return of replaced merchandise shall also be exempt from the payment of taxes levied on them, from the corresponding negotiation of foreign currency and from the application of economic prohibitions, provided that the conditions determined by the regulations are met.
Art 575: The exemption provided for in articles 573 and 574 does not include service fees, without prejudice to which the Executive Branch is empowered to grant it.
Art 576: In the cases provided for in articles 573 and 574, the request for exemption shall be made before or together with the request for the destination in question, including the relevant data of the respective contract and any other information that allows the merchandise to be identified.
Art. No.: 1. In cases of import or export of merchandise with deficiencies or that does not conform to the contracted specifications, the importer or exporter, instead of availing themselves of the treatment provided for in articles 573 to 576, may choose to re-export or re-import such merchandise and request the refund of the taxes paid in a timely manner, provided that it has not been subject to processing, repair or use in the country of import or export and is re-exported or re-imported within a reasonable period of time. 2. The use of the merchandise will not prevent its return in the event that it has been indispensable to verify its defects or other circumstances that have motivated its return. (Article incorporated by art. 248 of Law No. 27430 BO 29/12/2017. Effective: from the day following its publication in the Official Gazette)
Art 577: 1. The customs service may authorize that, instead of being re-exported, defective merchandise may be abandoned in favor of the national State or destroyed or rendered useless in such a way as to remove all commercial value, under customs control. It may also exempt the exporter from the obligation to re-import defective merchandise when re-exportation is not authorized by the authorities of the country of destination, or when the return is uneconomical or inconvenient and the exporter duly and reliably proves the total destruction of the merchandise abroad. 2. The regulations shall determine the maximum period within which the benefits provided for in this Chapter may be invoked. It may also set the maximum percentages or values within which this exemption may be used, and may vary them depending on whether or not the material or manufacturing deficiencies are subject to verification by the customs service. (Article replaced by art. 249 of Law No. 27430 BO 29/12/2017. Effective: from the day following its publication in the Official Gazette).
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