In Buenos Aires on the 26th day of November 2002, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the latter as president, met in order to rule on the case entitled: Aseguradora de Créditos y Garantías SA v. DGA s/appeal, file No. 13.348-A, to which is added No. 13.362-A, entitled Sevel Argentina SA v. Administración Nacional de Aduanas s/ appeal.
Dr. Catalina García Vizcaíno said:
I) That on pages 13/16 Aseguradora de Créditos y Garantías SA, through its representative, files an appeal against point 2 of Resolution No. 8340/99 of 1/11/99, issued in file EAAA No. 604.354/94, by which it is resolved to condemn the firm Sevel Argentina SA for alleged violation of art. 970 CA to a fine and its representative to pay $2.188,99 in taxes, plus interest, which would be payable by the importer. For the factual and legal reasons stated, it requests that said resolution and the charge ordered to be formulated in this regard be annulled. The plaintiff states that through temporary import clearance No. 021/91, the firm Sevel Argentina SA documented an operation under the regime of Decree No. 1554/86, which was guaranteed by the plaintiff. The plaintiff alleges that it requested proof from Sevel Argentina SA of compliance with the temporary admission suspension regime and that the latter informed it of its cancellation of almost all of the temporary admission in a timely manner. The plaintiff states that Sevel Argentina SA re-exported almost all of the previously imported merchandise within the term established by means of shipping permits Nos. 762/91, 786/91, 2926/91, 3620/91, 837/91, 872/91, 805/91 and 823/91. The plaintiff agrees with the grounds of the appeal of its insured. It offers evidence. It reserves the right to file a federal case. It requests that the charge be rescinded with the express imposition of costs.
II) That on pages 128/134 back. Ref. Sevel Argentina SA, through its attorney, files an appeal against Resolution DECONT No. 8340/99, issued by the 2nd Head of the Customs Legal Procedures Department in file No. 604.354/94, which resolves to condemn it to pay a fine of $9.182,50 under the terms of art. 970 of the CA and charges it for taxes in the amount of $2.188,99. It indicates that due to an involuntary error it informed the customs service that it had not exported the temporarily introduced merchandise. For this reason, it requests the revocation of the appealed resolution, without imposition of costs on the Treasury. The company states that it has re-exported the majority of the merchandise in a timely manner, with a small balance remaining unre-exported, which is the reason for the request for a reduction in the fine. It states that through DIT No. 021/91 it documented the temporary import suspension of merchandise intended for the manufacture of engines for their subsequent export to Brazil, consisting of various parts that make them up. It adds that said temporary import operation was carried out under the provisions of Decree No. 1554/86. It alleges that the small balance not duly re-exported occurred because it did not specifically record in the shipping permits the number of the temporary import clearance No. 021/91 that was being cancelled. The Customs Office argues that the shipping permits that specifically cancelled DIT No. 021/91 were in the possession of Customs, which shows that the latter was in perfect condition to determine the cancellation of the documented temporary import, in addition to the records that it must have for this purpose. The Customs Office reserves the right to file a federal case. It offers evidence and requests that the appealed resolution be revoked, with costs.
III) That on pages 160/163 back, the fiscal representation answers the transfer that was duly conferred on it. It denies each and every one of the assertions raised by the plaintiff that were not the object of its special recognition. It indicates that the purpose of the Surety Insurance is the elimination of the risk of default of the principal debtor, and that the loss is configured with the non-compliance of the principal obligation, without it being necessary to demonstrate the insolvency of the policyholder. It adds that the mere maturity of the debt is sufficient, unless a benefit of excussion has been agreed. It states that it arises from the records of the file that the importer would not have fulfilled the obligations assumed as a consequence of the benefit of the temporary import regime, having consequently configured the loss that authorizes the customs to claim the pertinent payment by the insurer. The plaintiff maintains that the guarantee contained in the policy is provided at the request of the firm, making the insurer the guarantor, plaintiff, and principal payer. The plaintiff states that the customs service assessed taxes as corresponding to the importation for consumption of the merchandise in question, and therefore with application of the tax regime in force in the documentary evidence in question, which the plaintiff knew at the time of guaranteeing, and that, therefore, the insurer must respond with the same scope and to the same extent as the tax obligation of the policyholder. It cites case law. It offers evidence. It requests that a judgment be issued confirming the customs ruling.
IV) That on pages 166/167 the public prosecutor's office contests the transfer regarding Sevel SA. It makes a brief review of the administrative background. It points out that from reading the proceedings it arises that the appellant temporarily imported the merchandise in question, but the same does not occur with respect to compliance with the obligation that the regime entails. It recalls that the burden of proof of compliance with the obligations inherent to the regime falls on the importer, who must demonstrate in a reliable manner that it has fully and completely complied with its obligations within the legal period granted. It cites jurisprudence that it finds in favor of its claims. It maintains that the fine applied should be confirmed, by virtue of the fact that the importer did not comply with its obligations as a consequence of the benefit of the temporary importation and that there was no mitigating circumstance. It reserves the federal case. It requests that the appealed resolution be confirmed, with costs.
V) That at fs. 192 the case is opened for evidence, which has been produced at fs. 199/213 and 225. At fs. 227 the proceedings are moved to argument, without the parties having made use of that right. At fs. 231 the proceedings are called to judgment.
VI) That on fs. 1 there is complaint 2310/94 against the firm Sevel Argentina SA under the terms of art. 970 of law 22.415 because the firm had not regularized within the term granted the merchandise entered through Temporary Import Clearance No. 021/91, which expired on 06/01/92. On fs. 5 the instruction of the summary is ordered in the terms of art. 1090 inc. c) of the CA. On fs. 29 the accused and the insurer are given notice of the law, who respond on fs. 50/52 and 37/43, respectively. On fs. 54 the accused indicates the numbers of the Shipping Permits by which she would have discharged the DIT in question, but without attaching the respective documents. On fs. 57/94 the importer's background is listed. On pages 98/100 back, Resolution No. 8340 dated 1/11/99 is issued, which resolves to condemn the firm Sevel Argentina SA to pay a fine of $9.182,50, equivalent to five times the fiscal damages, and to require the accused firm and the insurer to pay a sum of $2.188,99 in taxes.
VII) That in this case the plaintiff Sevel Argentina SA has been charged with failure to comply with the obligations it assumed as a result of having accepted the temporary import regime regulated by decree No. 1554/86, in relation to DIT No. 21/91.
It is not disputed that the expiration of the temporary import of the aforementioned DIT occurred on 6/1/92 (see, among others, pages 2, 16, 95/96 and 98/100 of the previous administrative records).
That the appellant importer acknowledged on page 6 of file No. 604.354/94 that the materials temporarily imported under DIT No. 21/91 were not re-exported, which is why we requested their nationalization. Likewise, it reported that it could not locate the merchandise in question.
That, however, in its appeal on pages 128/134 back Ref. of the case, the importer Sevel Argentina stated that this recognition was produced by an involuntary error, since only a small balance remained unexported (pages 128 back Ref.), which it identifies on pages 129 back /130 Ref. of the case and for which it submits.
That from the verification of the copies of the shipping permits attached by the plaintiff at fs. 39/127 Ref. of the file, it appears that the re-exportation within the term of the units that appear in the list of 22/8/94 that appears in the container envelope at fs. 3 of the adm. ant. has been proven, but the re-exportation of sub-items 10.5., 11.1., 10.6., 10.4., 1.8., 6.1., 3.2. and 1.7. of DIT 21/91, as stated by customs in that list, has not been proven. In this aspect alone, the appellant importer is not correct in its list at fs. 37/38 Ref. of the file. Regarding the list at fs. 129 vta./130 Ref. of the cars it should be noted that Sevel did not compute 192 units of part 77089900 (since it did not prove the re-exportation of the 384 units of sub-item 6.1. of the DIT in question); neither did it record the 192 units of part 76538170 of sub-item 1.7.
That the customs limited the facts only to the sub-items of DIT 21/91 that were not unloaded by PE 762/91, 786/91, 2926/91, 3620/91, 837/91, 872/91, 805/91 and 823/91 (see in this regard the glossed list on the container envelope on fs. 3 of the administrative ant., as well as fs. 11, 13, 14, 15, 16, 18, 20/25, 95/97 and 98/100 of those ant.).
It should be noted that the tax settlement requested from the co-actors arises from computing only the aforementioned sub-items whose re-exportation was not demonstrated (see pages 23/25, 95/97 and 98/100 regarding the amounts resulting from the previous administrative proceedings).
That, since the re-exportation of the aforementioned sub-items has not been proven with certainty, the infringement charged in relation to sub-items 10.5., 11.1., 10.6., 10.4., 1.8., 6.1., 3.2. and 1.7. of DIT 21/91 must be deemed to have been committed.
That even if after 6/1/92 the merchandise entered by said sub-items had been imported for consumption, or re-exported, this would not have implied its lack of sanction, since the Supreme Court of Justice of the Nation has held with respect to the suspensive destinations that the fact of the subsequent conversion into definitive cannot produce a neutralizing effect that removes the unlawfulness of the action of the sanctioned party, when configuring a case of expired maximum terms (Di Tata, Emilio Ernesto, of 10/2/81; Fallos, 303:141).
It is worth reiterating that art. 972, section 2 of the CA stipulates 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.
So much so that art. 275 of the CA provides that the DGA (according to decree 618/97) may authorize the re-exportation of the merchandise once the agreed term for doing so has expired, provided that the taxes levied on the import for consumption have been paid and the imposed sanction has been complied with… (emphasis added).
It does not arise from these proceedings that the appellant had paid the taxes that levied the importation for consumption in respect of the sub-items in question.
That, on the other hand, the payment of taxes for the importation of the merchandise does not have the character of a sanction, being noteworthy that the fact generating the tax obligation in such case is perfected at the time of the irregular transformation into definitive importation due to the expiration of the term; in this case this occurred on 6/1/92. If the merchandise had been re-exported after that expiration, it would not have removed the tax effects of the taxed importation in the terms of arts. 274 ap. 1 inc. a), 638 inc. e), 639 of the CA, with the consequence that whoever had temporarily imported the merchandise will be responsible for the corresponding tax obligations, without prejudice to the application of the corresponding sanctions.
Although tax offences are, as a general rule, of an objective nature, given the difficulty of determining the subjective element that would render many repressive norms illusory, as the TFN has rightly said in the field of criminal law, even when it concerns the aforementioned offences, the basis of punishment is found in the intention of the author. However, in such offences the same procedure leads to a presumption of guilt (culpability), thus producing an inversion of the evidence, although this does not presuppose the configuration of the offence independently of any intentional element (Escalante Pitt, Moisés MC, 13/567, of 8/6/78).
In this case, it has not been specifically demonstrated that the merchandise covered by the aforementioned sub-items in question was re-exported, and therefore, in this respect, the alleged infringement is deemed to have been established.
That the fine be graduated in four times the amount of the taxes that tax the importation for consumption of the units in violation according to the guidelines established by art. 915 of the CA, for which purpose it is considered that the majority of the merchandise temporarily imported by the aforementioned office was re-exported, as well as the abundant infraction records of pages 57/94 of the previous administrative proceedings.
Therefore, I vote for:
1st) Modify Resolution No. 8340/99 of the 2nd Head of the Customs Legal Procedures Department, replacing the fine applied to Sevel Argentina with $7.344,44 (seven thousand three hundred and forty-four pesos with 44/100) equivalent to four times the amount of taxes calculated as the basis for the fine on pages 95/97 of the previous administrative proceedings, and confirm the contested tax assessment. Costs according to the due dates.
2nd) The appellants are hereby ordered to pay the remaining 1% of the tax charge arising herefrom, as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871.
3rd) Once this ruling is signed, Sevel Argentina SA must pay 2% of the fine that is actually applied, as a fee for actions provided for in Law 22.610 amended by Law 23.871.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) Modify Resolution No. 8340/99 of the 2nd Head of the Customs Legal Procedures Department, replacing the fine applied to Sevel Argentina with $7.344,44 (seven thousand three hundred and forty-four pesos with 44/100) equivalent to four times the amount of taxes calculated as the basis for the fine on pages 95/97 of the previous administrative proceedings, and confirm the contested tax assessment. Costs according to the due dates.
2nd) The appellants are hereby ordered to pay the remaining 1% of the tax charge arising herefrom, as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871.
3rd) Once this ruling is signed, Sevel Argentina SA must pay 2% of the fine that is actually applied, as a fee for actions provided for in Law 22.610 amended by Law 23.871.
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