In Buenos Aires, on the 27th day of September 2002, the members of Chamber E, Drs. Catalina García Vizcaíno and Gustavo A. Krause Murguiondo, met (Dr. D. Paula Winkler is on leave) in order to decide the case entitled: BANCO MACRO MISIONES SA v. DGA s/ appeal; file No. 12.269-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 107/127 round. Banco Macro Misiones SA, through its representative, files an appeal against art. 3rd of Res. FROM PLA No. 4709, issued on 6/7/99 in file. EAAA 602.343/94 as it charges a tax for the guarantee provided in favor of ITA Agropecuaria, for the sum of $11.339,21, in relation to DIT No. 10678/90. Firstly, it raises the exceptions of nullity and lack of passive legitimacy, arguing that it is not a successor of the guarantor company Banco de la Provincia de Misiones. He states that in March 1999 he was notified of a hearing that was conferred to the Bank of the Province of Misiones, with address at Bartolomé Mitre 744, Capital Federal, however, he went to Banco Macro Misiones SA with address at Sarmiento 735, Capital Federal. He points out that on that occasion he proceeded to return the notification explaining to the administrator the error that had been made and informing him that said notification should be addressed to the Bank of the Province of Misiones (in liquidation) whose address is Rivadavia 1642, 10th floor, office C, in the city of Posadas, Province of Misiones. He alleges that, ignoring the aforementioned explanations, on 28/5/99 he was notified of a ruling in which he was considered to have been presented and a party, while the return of the certificate was not granted, since according to the administrator's assumption, the Bank of the Province of Misiones was absorbed by Banco Macro Misiones SA, which he maintains never occurred. He points out that he opposed the nullity of the ruling in question because he considered that he was not a party to the dispute, indicating that everything was due to an erroneous reading and interpretation of the documentation submitted to prove his legal status. He points out that the administrator ignored the arguments presented and issued a resolution rejecting the nullity raised. Explains the genesis of today's Banco Macro Misiones SA in order to clarify the provenance of the exception raised. He claims that in order to carry out the spin-off of the Bank of the Province of Misiones SEM and establish the Bank of Misiones SA Laws were enacted and all acts and requirements demanded by the Commercial Companies Law No. 19.550 were carried out, especially the guidelines required by its arts. 84 and 88. He adds that at the end of November 1995 the new corporation was registered in the respective Public Registries, being authorized by the Central Bank by Res. 808 to operate as a retail bank, beginning its activities as a financial institution on 2/1/96. He maintains that the Bank of Misiones SA has not subrogated the Provincial Bank of Misiones SEM through privatization, it is neither the owner nor the debtor of the liabilities of the aforementioned bank as one might believe. He claims that two independent and different ideal persons coexist, namely: 1) Banco de la Provincia de Misiones Sociedad de Economía Mixta (today in liquidation), and 2) Banco de Misiones SA (today Banco Macro Misiones SA). It analyses the situation of liabilities, highlighting that it was determined that only certain expressly determined liabilities would be transferred to the new company. He warns that in the Act of Taking Possession a cut-off date was set, 31/12/95, until which all credits and debits would be considered accrued in favor of and against Banco Provincial. Perform a detailed analysis of the accompanying accounting documentation. He summarizes in this regard that from the harmonious play of dates and documentation that summarizes the process of formation of Banco de Misiones SA, it arises that until the Banco de la Provincia de Misiones SEM, currently in liquidation, finished operating, the relevant Accounting Heading existed in its head (Code 711034001 for $ 18.809,00), but as of 1/1/96, in the accounting of the brand new Banco de Misiones SA The item under review appears with a balance of $0, which would demonstrate that the obligation in question was not transferred to Banco de Misiones SA (today Banco Macro Misiones SA). It indicates that the obligation that gives rise to these actions was established in 1990, that is, before 31/12/95 (cut-off date), therefore, if such obligation existed, it always remained in the name of the Bank of the Province of Misiones. It refers to the legal framework and regulations applicable to the case. He points out that the aforementioned continuation of the provincial bank under the leadership of Banco de Misiones SA never existed, but rather it was a spin-off of companies in accordance with Law 19.550 and that, as can be seen from the documentation provided, the non-continuation was an essential condition of the spin-off. He alleges that, ultimately and in the hypothetical case of being considered as a continuation, this would be limited to the assets and liabilities that Banco de Misiones SA acquired at the appropriate time. and among which is not found the guarantee that gives rise to these actions. The Court also raises an exception of nullity, as a direct consequence of the defendant's lack of passive legitimacy, and requests that, in accordance with the principle of procedural economy, the exceptions be resolved at the time the final judgment is issued. As to the merits of the matter, it is noted that the case was initiated by the alleged non-payment of a tax obligation that was in the name of ITA Agropecuaria SA, which was declared in default, and the Bank of the Province of Misiones was also notified in its capacity as guarantor of the tax obligation, an entity that limited its response to the mere statement that the entire portfolio had been transferred to Banco Macro Misiones, in response to which, without any further explanation, the customs service decided to transfer it. He warns that the notification notice is addressed to Banco Macro Misiones but a ruling is attached ordering that the Bank of the Province of Misiones be notified. He states that in this state of confusion he proceeded to return the notice indicating that the notification should have been sent to the aforementioned bank in liquidation, and that, however, instead of noticing the error, it was considered to be issued on 18/5/99, in response to which he raised the nullity of said order, which was rejected by the appealed resolution, for which reason he reiterates the exception. Requests that the aforementioned ruling and all acts issued as a result thereof be declared null and void. He points out that the Bank of the Province of Misiones was summoned to submit the documentation proving the alleged transfer of obligations, but that it did not comply with said summons. It considers that it is inadmissible to prove that it is not a guarantor, since it would be up to customs to prove the existence of the obligation and its liability. He states that if, based on the signed documentation, the Provincial Bank appears to be responsible for the obligation whose non-compliance gave rise to the cause, said entity must remain linked until the documentary evidence supporting its status as guarantor is disproved and it is proven that such responsibility was transferred, since otherwise it would be linked by a mere incriminating statement lacking factual and evidentiary support. He maintains that the appealed decision, insofar as it confuses the identities of the accused persons, is, at the very least, void, and he requests that this be declared. He stops to analyze the rule that is believed to have been violated. He clarifies that although a penalty is not being imposed but rather the payment of a tax is being required, he maintains that the appealed resolution is a sanctioning sentence. It concludes that the procedure and the sentence incur common defects by basing the sanction on an erroneous generic objective responsibility and by not individualizing what was the subjective culpability of Banco Macro Misiones SA Provide proof. It reserves the right to appeal to the federal court and requests that the appeal be granted, with costs.
II) That on pages 141/144 back, the fiscal representation answers the transfer that was duly conferred on it. It makes a summary of the facts that gave rise to the proceedings. Regarding the plaintiff's defense of lack of passive legitimacy, it highlights that on pages 44/47 of the ant. adm. the guarantor signature is presented indicating that the Bank of the Province of Misiones is in liquidation, having transferred all the portfolio to the now called Banco Macro Misiones; that the latter later specified that it is the successor of Banco Macro SA, but that it is a different entity and that it is not the successor of Banco de la Provincia de Misiones; that the latter has remained silent when cited in the proceedings for the purpose of attaching the documentation that would prove the transfer of obligations to Banco Macro SA and/or Banco Macro Misiones. The plaintiff adds that Banco Macro Misiones SA has not submitted to the administrative office the initialled financial statements that prove its claim to be released from the administrative file, for which reason none of the banks have conclusively demonstrated that they should not be held responsible for their obligation as tax guarantors. It refers to the purpose of the Surety Bond and that the loss is configured with the non-compliance of the main obligation, unless a benefit of excussion has been agreed. It maintains that the insurer is obliged by virtue of the policies as a joint guarantor and that the importer would not have fulfilled the obligations assumed as a consequence of the benefit of the temporary import regime, having configured the aforementioned loss. It warns that the insurer's liability is inexcusable and that through the policy in question the plaintiff insured the former ANA for which the importing firm would be obliged to pay as a consequence of the temporary import, foreseeing the excess that could result from the application of art. 1122 of the CA, the guarantor being constituted in default by operation of law by the mere expiration of the term. It also points out that the customs service liquidated the 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 treatment that the appellant knew at the time of guaranteeing, for which reason the appellant should respond with the same scope and to the same extent as the tax obligation of the policyholder. It clarifies that the policies are predetermined by Customs Res. No. 2749/93 Annex X. It considers art. 794 of the CA to be applicable but understands that the application of law 23.905 does not correspond to the case because the interests are not provided for in accordance with it, but rather in law 22.415. It cites jurisprudence and requests that the action brought be rejected, with costs.
III) That at fs. 149 the case is opened for evidence, which is added to fs. 157/276, 286/311 and 345/349. Once the proceedings are ready for argument, the plaintiff does so at fs. 358/360, without the Treasury making use of that right. At fs. 362 the proceedings are moved to judgment.
IV) That at fs. 1 of file EAAA No. 602.343/94 contains the Complaint Report No. 1607/94 drawn up on 11/5/94 in accordance with the terms of arts. 970 and 972 of the CA in relation to DIT No. 10678/90 documented by ITA Agropecuaria SA At fs. 3 the aforementioned DIT is glossed in an envelope to which is attached the Guarantee Control No. 493797 presented on 27/11/90 corresponding to the guarantee Policy No. 239 issued by the Bank of the Province of Misiones for a total amount of A 49.000.000. At fs. 5, on 12/9/94 the opening of the summary is ordered. At fs. ref. 39, on 1/3/99, all the actions taken by ITA Agropecuaria SA were reviewed and to the Bank of the Province of Misiones in its capacity as guarantor of the tax obligation. At fs. ref. 49/vta. The legal representative of the Bank of the Province of Misiones SEM is presented (in liquidation). He points out that the bank in question was privatized, completing the privatization process on 31/12/95, and that on 2/1/96 the Business Unit was handed over to the successful bidder, and Banco de Misiones SA began to operate, currently (as of 23/3/99) Banco Macro Misiones SA; he points out that at the time of the transfer of the Business Unit, all the records, folders, accounting records, guarantees, endorsements, etc. were also handed over to the successful bidder. related to the credit portfolio and its relationship with customers, in addition to having been transferred, for clarification purposes, the same background and documentation of all the items of Assets and Liabilities that constitute the banking operation; maintains that the Bank of the Province of Misiones SEM is not a suitable subject to require its intervention, and the summons of Banco Macro Misiones SA is appropriate. At fs. ref. 50 the importer is declared in default and the summons of the appellant here is ordered. At fs. ref. 55/56 the representative of Banco Macro SA appears Noting that it has changed its corporate name to Banco Macro Misiones SA as a result of having absorbed Banco Misiones SA obtaining authorization from the Central Bank as of 1/12/97 to act in this regard; proceeds to return the notice that it estimates should have been sent to the Bank of the Province of Misiones (in liquidation). At fs. ref. 80, on 18/5/99 the return of the certificate is not granted since according to the statements of the presenter the Bank of the Province of Misiones has been absorbed by Banco Macro Misiones SA, for which reason it is responsible, together with the previous residual, for the taxes owed in this case. At fs. ref. 89/93 round. The plaintiff appears and raises the nullity of the decision that was notified to her. At fs. ref. 99 On 7/6/99, the Bank of the Province of Misiones was ordered to attach within five days the documentation that proves 'the transfer of all the obligations to Banco Macro SA' and/or to Banco Macro Misiones SA….. The notification certificate on fs. ref. 100/101 was notified to the Bank on 10/6/99 without the notice being answered. At fs. ref. 104/105 Res. is issued. FROM PLA No. 4709 of 6/7/99 appealed in this case. Work added without accumulating the EAAA file No. 417.636/94, processed prior to the procedure for infractions that concluded with the appealed resolution.
V) That, first of all, it is appropriate to rule on the exception of lack of legitimacy.
I have held that this exception applies when the plaintiff or the defendant or respondent (AFIP-DGI or AFIP-DGA) are not the holders of the substantial legal relationship on which the claim is based and that due to the connection that the legitimacy to act has with the substantive issue submitted to the judge's ruling, such exception can only be decided as prior "when the absence of legitimacy appears in a manifest manner (Tax Law - General Part, Volume II, 2nd edition, pp. 218/219. Buenos Aires. Depalma. 2000).
That, therefore, in this case - as requested by the plaintiff at fs. 117/vta. - the treatment of the aforementioned exception with the merits of the matter was ordered (see fs. 149).
That in this case it is not disputed that the guarantee referred to in control No. 493797 was granted by the Bank of the Province of Misiones. On page 348 there is a copy of the policy identified with registration No. 33432-0 in which it is stated that the Bank of the Province of Misiones is constituted as a plain and simple guarantor and principal payer… of the guarantee granted in favor of ITA Agropecuaria SA
It is being discussed whether the plaintiff is a successor of this entity and, consequently, its tax liability for the guaranteed operation (DIT 10678/90).
That article 88 of the Commercial Companies Law provides that: there is a demerger when:
I. a company that has not been dissolved allocates part of its assets to merge with existing companies or to participate with them in the creation of a new company;
II. A company that has not been dissolved allocates part of its assets to establish one or more new companies;
III. A company is dissolved without being liquidated in order to form new companies with all of its assets
Verón explains that according to the Dictionary of the Spanish Language, the word "scission" comes from the Latin scissio (cut) and means break, disagreement; the word "split" originates from the Latin scindere and means to cut, divide, separate. After mentioning different doctrinal positions, the aforementioned author points out that for Guyénot, while the merger is an operation that responds to the needs of concentration of companies in the modern economy, the split, on the other hand, allows the deconcentration of a company that has reached a magnitude that makes its administration difficult, and a specialization of its elements in the autonomy of management (VERÓN, Alberto Víctor. Sociedades internacionales, Tomo 2, p. 94. 3rd Reprint. Astrea. Buenos Aires. 1998).
On the other hand, Verón points out that if the transfer of assets conceals a fraudulent manoeuvre to the detriment of creditors of the split company, it will become unenforceable to them, who may assert the exceptional application of the principle of the dismissal of corporate personality in defence of their legitimate rights. Obviously, the transfer of assets that takes place must result in the existence of capital in the case of the creation of a new company and in the case of the allocation of assets in favour of an existing company, the transfer of the split assets; in no case, in the case of stock companies, may it imply a loss of the capital of the entity receiving such assets that would make it fall into the situation provided for by art. 205 of the law (VERÓN, Alberto Víctor, Sociedades internacionales, op. cit., Tomo 2, pp. 106/107).
That at present there is no presumption of fraud that would render the split unenforceable to customs, since this is specifically a Provincial Bank that has complied with the requirements that I am going to outline.
That on pages 161/164 there is Resolution 808 of 22/11/95 by which the Central Bank of the Argentine Republic authorized Banco de Misiones SA to operate as a retail commercial bank, with headquarters in the city of Posadas, Province of Misiones and subsidiaries in the places where branches of Banco de la Provincia de Misiones SEM currently operate and admitted, on an exceptional basis, the integration of capital of Banco de Misiones SA through the contribution of assets and liabilities of Banco de la Provincia de Misiones SEM. In addition, it provided that as of the date on which Banco de Misiones SA begins activities, the authorization to operate as a commercial bank held by Banco de la Provincia de Misiones SEM will be revoked, and authorized Banco Macro SA to be the owner of 92,52% of the share capital of Banco de Misiones SA.
That in the justification of this Resolution, the Central Bank of the Argentine Republic pointed out that through provincial law No. 3036 the legislature of the Province of Misiones ordered the Executive Branch to carry out the necessary and conducive acts to transform the Bank of the Province of Misiones SEM [mixed economy company] into a corporation; that this law was later modified by Provincial Law No. 3108, which established that said company should arise by splitting off the assets of the Bank of the Province of Misiones SEM. (..) It was also ordered that the Province guarantee the payment of the liabilities that may be defined or result for the assets of the spin-off company…. It notes that within this legal framework the creation of Banco de Misiones SA was arranged, promulgating the bases and conditions for the sale by public tender of the provincial State shares in the new company representing 92,52% of its share capital and that on 31/8/95 the Extraordinary Assembly of the spin-off was held in which Banco de Misiones SA was created.
That, likewise, the Central Bank of the Argentine Republic stated in the aforementioned reasoning that the minimum capital corresponding to a retail commercial bank is $15 million, while the net worth of the new entity: Banco de Misiones SA - at the beginning of its activities would amount to $9 million, derived from the transfer of a business unit made up of assets and liabilities of Banco de la Provincia de Misiones SEM, reason for which it granted an exception and revoked the authorization to operate as a commercial bank to Banco de la Provincia de Misiones SEM
That on pages 289/310 (II cpo.) there is the General Liquidation Balance Sheet as of 30/6/96 of the Banco de la Provincia de Misiones, which states: that the first step to be taken was the spin-off of the company, sale of the spun-off company, granting of the authorization from the Central Bank of the Argentine Republic to operate as a financial entity of the same, and, simultaneously, withdrawal of the authorization to the spinning-off company; that on 31/8/95 the Banco de Misiones SA was created, as a spin-off of the former [Banco de la Provincia de Misiones SEM], with a capital of $9.000.000; that once all the deadlines and requirements for the call for bids for the sale of 92,52% of the share package, owned by the Provincial State, of the new institution, were met, the opening of the economic offers for its award is resolved; that the offer made by Banco Macro SA was selected as the most suitable, and therefore was awarded the contract; that by Res. 808/95 of the BCRA, Banco de Misiones SA was authorized to operate as a financial institution, while the authorization to operate as a bank was withdrawn from Banco de la Provincia de Misiones SEM, its corporate purpose disappeared, so it must be dissolved and its liquidation process initiated as of said date [2/1/96], which effectively occurred; that the assets made up of the loan portfolio were transferred to the new entity for its administration and collection, in the now residual entity, and on an exceptional basis, there were few debtors and all of the bank's liabilities, for collection of some and cancellation of others in its liquidation process initiated on 2/1/96; that on 5/9/96 by Extraordinary General Assembly its dissolution and liquidation was resolved, appointing its Liquidator in the same act; that during the liquidation stage, debts and credits have been reconciled, restructuring their financial situation, refinancing current loans and obtaining others, in order to facilitate the cancellation of their debts, with the Provincial State actively participating as guarantor of the different operations.
It follows from this that the plaintiff is right in that simultaneously with the action as a financial entity of Banco Macro Misiones SA, the liquidation process of the Banco de la Provincia de Misiones was taking place, since the latter had not transferred all of the debts to the new entity.
That in the General Liquidation Balance Sheet of the Bank of the Province of Misiones the item Debts is observed (fs. 295/296) which corroborates that they were not transferred in their entirety to the appellant. Furthermore, it is noted that at the time of closing the Financial Statements on 30/6/96, there are (sic) a significant number of legal proceedings in which the Bank of the Province of Misiones SEM was or is a party, although the patrimonial impact will be given by its costs and fees (fs. 297; see, also, the auditor's report which on fs. 307 explains that due to the significant number of legal proceedings in which the entity is a party, the pertinent provisions have been made, evaluating for this purpose the possibilities of success or failure that they may have, basically due to their patrimonial impact). It is highlighted in the aforementioned Balance Sheet that since the Bank of the Province of Misiones is in liquidation, it is exempt from national taxes and therefore its debts are remitted by Law 24.537, adding that on 26/6/96 it requested the Ministry of Economy and Public Works and Services of the Nation to accept tax exemptions for public entities in liquidation (page 299).
Thus, Article 2 of Law 24.537 provides that: Any provincial or municipal entity that, due to administrative and/or patrimonial restructuring processes, is declared in a state of dissolution or liquidation, shall be exempt from all taxes whose application, collection and inspection are the responsibility of the General Tax Directorate and the National Customs Administration.
In order to enjoy the benefit indicated in the preceding paragraph, the provincial or municipal authority will send to the Ministry of Economy and Public Works and Services the latest approved balance sheet, a draft liquidation balance sheet detailing the status of the assets and liabilities of the entity subject to dissolution and any other information or documentation available to the aforementioned ministry to decide on the admissibility of the franchise.
That, furthermore, on 2/1/96 in the Act of Taking Possession of the plaintiff (pages 29/47) the credits and debits as of 31/12/95 - cut-off date - were detailed, transferred to Banco de Misiones SA according to the first point, and it was specifically established in its fourth point: For all purposes, the cut-off date and time for the purposes of determining rights and obligations between Banco de la Provincia de Misiones SEM and Banco de Misiones SA is established as 24 hours on 31/12/95. Until that moment, all credits and debits of periodic or temporary accrual are considered accrued in favor of and against Banco de la Provincia de Misiones SEM and from that moment on, all credits and debits of periodic or temporary accrual will be considered accrued in favor of and against Banco de Misiones SA. (pages 36 back and 37)
That in the fifth point of the aforementioned Act it was provided that: According to the stipulations of Law 3108, the Terms and Conditions Document and the Share Transfer Contract, it is agreed that it is an essential condition of the Taking of Possession that Banco de Misiones SA does not succeed Banco de la Provincia de Misiones SEM in the obligations that are not expressly included in the Business Unit and in the inventories attached hereto, for which reason Banco de Misiones SA will immediately inform Banco de la Provincia de Misiones SEM of any claim it receives for obligations that correspond to the latter (fs. 37/vta. of the files; the emphasis is on this page). On fs. 48/65 appears the transfer financial situation as of 31/12/95 of Banco de la Provincia de Misiones.
That on pages 76/83 a summary of the operations of Banco de Misiones SA as of 29/12/95 is shown, in which the Account No. 711034001 is highlighted under the concept of Guarantee Granted of I. balances of 18.809,00. (pages 82 back). On pages 85/87 a balance sheet of balances and averages as of 31/12/95 is shown, in which the same concept as on pages 82 back is highlighted. (pages 86 back). On pages 89/91 back is a consolidated statement of balances and averages as of 01/01/96, the date on which the plaintiff took over the new company, where the concept of Guarantee Granted of I.T. is highlighted under the same account number. before adu but with balance 0,00 (fs. 91).
This allows us to infer that the guarantees provided by the Bank of the Province of Misiones were not transferred to the appellant.
That, likewise, on page 93 appears the description of account 711.034.001, as account. Debt order. Benefits of Guarantees. Grants. Import., for a total in pesos of 18.809, in which the guarantee in question appears.
That, for the reasons set forth above, it is appropriate to uphold the exception of lack of legitimacy raised by the appellant and revoke the contested resolution in its regard.
(VI) To be more explicit, it should be added that in a case that is somewhat similar to the one in the sub-item, such as the liability of the purchasers of goodwill for the outstanding customs and exchange obligations of the transferor, it has been said that there is no general legal provision or principle of law that exempts the State from asserting its rights in the manner and time provided by law on transfers of goodwill, such that, as a principle, it is possible to maintain that if the tax authorities do not oppose the transfer within the term, the purchaser would be exonerated from liability (KRAUSE MURGUIONDO, Gustavo A. Reorganization and transfer of goodwill -Tax Treatment-, p. 127. FEDYE. Buenos Aires. 1975). In support of this, this author cites the then National Special Chamber in a pronouncement published in La Ley, vol. 85, p. 15, which held that if when transferring a business with the formalities of Law 11.867, the tax authority did not appear invoking its rights in the case of restitution of foreign currency, the purchaser cannot be held responsible for an unknown debt since the purpose of that law was not only to protect creditors but also to provide security to the successor (KRAUSE MURGUIONDO, Gustavo A. Reorganization and transfer of business funds -Tax Treatment-, op. ci.t, p. 128).
That the Commercial Companies Law No. 19.550, after the reform introduced by Law 22.903 establishes in the cases of spin-offs or divisions of companies, the requirement of publicity of said act in the legal publication journal of the place of the registered office of the company being split, and the possibility of opposition by creditors within the time periods set forth therein (articles 88 and 83 of the aforementioned law).
That this procedure replaces, in the case of mergers and divisions of companies, the one established in Law 11.687.
It should also be clarified that the liabilities of the company are only transferred by legal provision in cases of merger of companies (art. 82, law 19.550), but not in cases of demerger, in which the transfer of liabilities only occurs if expressly agreed by the parties to the operation. (arg. art. 88, ap. 4°, inc. c) of law 19.550).
VII) That the nullity raised cannot prosper, since the procedure was legitimately followed with respect to the importer of DIT 10678/90, despite the formal error evidenced by the customs to which it was led by the response on pages 49/back of the ant. adm., considering that, when presenting its writing on pages 89/93 back of the ant. adm. the plaintiff did not even offer the evidence that it proposed before this Court to prevent the customs from charging it with the charge in question.
That a contrary solution would lead to declaring the nullity for the nullity itself, with fiscal prejudice with respect to the importer, due to the calculation of the prescription, to which is added that the customs did not release the Bank of the Province of Misiones from liability (see fs. 80 of the ant. adm. where it states that the plaintiff is responsible together with the previous residual, for the taxes owed in the proceedings); so much so that the appealed resolution was also notified to the Bank of the Province of Misiones (see fs. 113/vta. of the ant. adm.), by virtue of the fact that this resolution in its penultimate paragraph of the Consideration estimated that the charge should be brought to the importer and to the Insurance Company Banco de la Provincia de Misiones SA and/or Banco Macro Misiones SA
It should be remembered that it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Fallos, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, dated 26/11/91), and that since the contested decisions are sufficiently founded, it is not required to expressly mention all of the appellant's arguments (among others, Fallos, 251-39).
That, moreover, it has been repeatedly said that when the restriction of the defense in court occurs in the procedure that is carried out in an administrative seat, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of the defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among many others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-).
I am in favor of not awarding costs to the appellant in this regard, given that it could plausibly be considered entitled to raise the exception of nullity, due to its lack of standing in the present case.
VIII) That the way in which I vote on this motion renders the consideration of the rest of the issues raised unnecessary.
Therefore, I vote for:
To uphold the exception of lack of legitimacy raised by the appellant and revoke art. 3 of Res. DE PLA No. 4709/99 only with respect to Banco Macro Misiones SA With costs.-
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:
To uphold the exception of lack of legitimacy raised by the appellant and revoke art. 3 of Res. DE PLA No. 4709/99 only with respect to Banco Macro Misiones SA With costs.-
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. García Vizcaíno and Dr. Krause Murguiondo, as Dr. Winkler is on leave (Conf. art. 1162 of the CA)
