In Buenos Aires on the 21st day of June 2002, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met in order to decide the case entitled: «ASEGURADORES DE CAUCIONES S.A. INSURANCE CIA. v. DGA s/ appeal», file No. 16.467-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 16/17 Aseguradores de Cauciones SA Cía. de Seguros, through its representative, files an appeal against Resolution No. 785/01, issued on 14/6/01 by the Administrator of the Córdoba Customs in file SA17-97-013. It is aggrieved in that it is required to pay taxes in the amount of $8.934,14 (it consents to the amount of $2.000), exceeding the amount of $3.000 that would arise as the maximum insured amount through the policy it issued. It indicates that it guaranteed compliance with DIT 123/93, through the surety insurance policy No. 314.415 up to the equivalent amount of US$3.000. It states that the customs liquidation must be limited to the amounts settled in OM 1190 and in DIT 123/93. It refers to the surety bond and indicates that the maximum amount indicated in the policy is the amount that, if the policyholder is required to pay taxes - due to the incident - should be paid and no more, in accordance with the provisions of art. 1996 of the Civil Code. It cites jurisprudence that it considers applicable. It offers evidence, reserves the federal case and requests that the appeal be upheld, with costs.
II) That on pages 25/26 back, the fiscal representation answers the transfer that was duly conferred to it. It makes a brief review of the proceedings and the considerations expressed by the plaintiff. It indicates that the importer did not comply with the obligation to export the merchandise under the temporary import regime within the agreed period, nor did the insurer prove that the policyholder had complied with said obligation, so it understands that the responsibility and the commission of the infraction contemplated in art. 970 of the CA have been proven. It points out that through the policy the insurer assumes the responsibility of the third party in equal degree and condition. It indicates that from the reading of the OM 1190 of the DIT 123/93 it appears that the appellant has guaranteed the sum of $9281, originally in dollars, and that from the same form it appears that two policies have been issued: one for US$7000 and another for US$3.000, which would appear on pages 175/176. 10.000 and 25.561 of the administrative proceedings, which yields an insured sum of US$ 214, without prejudice to the provisions of Law 01 and Decree XNUMX/XNUMX for the application of the CER. He requests that the appeal be rejected, with costs.
III) That on page 30 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
(IV) As regards the matter at hand, at fs. 30 of file No. SA 97 013, there is the Complaint Report formulated in accordance with arts. 970 and 972 of the CA in relation to DIT No. 123/1993 registered by Tubos Trans Electric SA. At fs. 32/40 there are copies of the aforementioned DIT. At fs. 43/44 Ref. the tax regime in force at the time of the expiration of the temporary admission period is detailed. At fs. 56, on 22/1/97 the summary is opened, the importer having been notified at fs. 57 of the order that ordered its review, which is answered at fs. 60/61 back. At fs. 73, case ADGA 1999-435735 is added. At fs. 141/3 shows the settlement of the market values of the merchandise affected by the summary. At fs. 146, file ADGA 2000-421449 is attached, in which the importer alleges. At fs. 150, the insurer is informed of the proceedings, which is notified at fs. 156; at fs. 163, the plaintiff is declared in default, which is presented at fs. 164. At fs. 174/176, copies of the guarantee control No. 272/93 and of the policies, corresponding to DIT 123/93, appear. At fs. 188/191, Resolution 785/01 appealed in this case appears.
V) That DIT 123/93 is the only one in the sub-lite, without the plaintiff even having invoked its compliance.
It arises from the proceedings that the appellant subscribed to two policies to guarantee the tax liquidation of US$ 9281 (see pages 32/40 and 174/176 of the ant. adm.): the one with number 314.218 for US$ 7.000 and the one with number 314.415 for US$ 3000. Although the guarantee control, a copy of which appears on page 174 of the ant. adm. does not mention any number in this last case, it does state the amount of US$ 3000, insured by the appellant, which is the same as policy No. 314.415 of pages 175 of the ant. adm. relating to the same air waybill or knowledge of policy No. 314.218.
That under these policies the appellant assured the former National Customs Administration cash payment up to the sum of US$ 10.000 (in total) "plus whatever may result in excess by application of art. 1122 of the Customs Code that Tubos Transelectric SAICF and A. may be required to make to it. ... by application of the legal and/or regulatory provisions in force in customs and tax matters, as a result of the following operation: Temporary Admission corresponding" to the merchandise Parts for Transformers and Various Accessories for Transformers.
That from the Guarantee Control No. 272/93, presented on 12/4/93, it appears that on the occasion of DIT 123/93, Aseguradores de Cauciones through the referred policies guaranteed the total sum of US$ 10.000, for having liquidated taxes for the aforementioned operation for US$ 9281, broken down into the following concepts, namely: Rights $ 1526; rates $ 1017; VAT $ 2289; additional VAT $ 1017; perception of income tax $ 381 (total US$ 9281; some observations appear which lead to the sum of $ 9271,92). These amounts coincide with those recorded in the liquidation of DIT 123/93.
VI) That the customs office imposed a tax charge on the appellant insurance company for the sum of $8934,14, according to the liquidation recorded on pages 141/143 of the previous administrative proceedings, which the appellant has not refuted in a concrete and reasoned manner.
That, consequently, the amount owed by the plaintiff for taxes does not exceed the amount of US$ 10.000 that she guaranteed, for which reason her claim cannot prosper.
VII) It should be noted that the appellant agreed to the sum of $2000. She was aggrieved only with respect to the amount of $6934,14 (consisting of the difference between $8934,14 and $2000), and therefore should be considered defeated only with respect to this amount.
Therefore, I vote for:
1st) To confirm the Ruling Resolution No. 785/01 of the Administrator of the Customs of Córdoba, insofar as it has been the subject of the appeal. Costs to the appellant in the amount of $6934,14.
2nd) The appellant is hereby ordered to pay, within a period of five days, the amount of $69,35 as the balance of the fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
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) To confirm the Ruling Resolution No. 785/01 of the Administrator of the Customs of Córdoba, insofar as it has been the subject of the appeal. Costs to the appellant in the amount of $6934,14.
2nd) The appellant is hereby ordered to pay, within a period of five days, the amount of $69,35 as the balance of the fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
Surety Insurers SA Insurance Company v. DGA s/ appeal, file No. 16.467-A of 21/06/2002
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