Buenos Aires, April 16, 2002
CARS AND SEEN:
File No. 12.726-A entitled BARTOLOME, JUAN A. C/DGA S/REC. OF APPEAL, and
CONSIDERING:
I.- That on pages 10/11 back, the customs broker Juan A. Bartolomé, through attorney, files an appeal against Resolution No. 10.598/98 of the Head of the Contentious Department of the DGA issued in file EAAA No. 606.513/96, by which he was sentenced (jointly and severally with the exporting firm Calafate SA) to pay a fine under the terms of art. 954, paragraph a) of the CA for the alleged inaccurate declaration regarding the export for consumption documented by PE No. 137.504-4/95. He states that in that operation (by which the aforementioned exporter exported a batch of beans for consumption) he acted as broker and that he limited himself to the technical information and commercial documents provided by said exporter. The plaintiff also points out that the PE proposed an index price ($1.300/ton) corresponding to merchandise of a higher quality than the resulting one when the verification resulted in merchandise of lower quality with a lower index price ($1.080/ton), which in the subsequent summary the customs acquitted under the assumption of inc. c) and condemned under the assumption of inc. a), of art. 954 of the CA, and that the plaintiff paid the fine imposed, leaving the precedent (for the plaintiff in these proceedings) that it claims - has no reason to exist. Therefore, it claims that no inaccuracy was incurred (the plaintiff dismisses this extreme) and that in any case it would not be responsible, the latter for having fulfilled the obligations under its charge (as it adjusted to the information given by the exporter) and therefore by application of art. 908 of the CA. It offers evidence and requests that the appealed resolution be revoked, ordering its acquittal.
II.- That on pages 19/23 the fiscal representative attaches the administrative acts in the background of this case (file EAAA No. 606.513/96) and answers the transfer of the appeal. It refers to the background of the matter and to the grievances of the plaintiff. It maintains, contrary to what was stated by the plaintiff, the liability of the latter in its capacity as forwarder in the operation in question, indicating that in these cases the forwarder is responsible for proving the existence of causes of exculpation (such as compliance with express instructions from its principal, the exporter), and affirms that such accreditation has not been given, the plaintiff limiting itself to the mere declaration of this cause without providing any evidence in this regard. It invokes jurisprudence in this regard, and requests that the customs ruling be confirmed.
III.- That at fs. 24 the case was opened for evidence, ordering the letter (to the firm exporting the PE of the case) offered by the plaintiff, which was answered at fs. 32. At fs. 34 the evidentiary period was closed and the case was submitted to this Chamber G. At fs. 35 the case was submitted for argument, with the plaintiff's argument appearing at fs. 40/41 and without the treasury making use of this right. At fs. 43 the case was submitted for judgment.
IV.- That according to the administrative acts background of this case (file EAAA No. 606.513/96), the plaintiff, as customs broker, documented for the exporting firm Calafate SA the export for consumption of a batch of kidney beans, through PE 137.504-4/96 and, as far as is of interest here, in item 2 of said PE the following were documented: kidney beans…. with a weight of 191 to 220 grains per 100 grams with an official price of US$ 1.300 per ton, an operation benefited with a 6% refund (on the official price); and on this occasion the DJVE 5918 (law 21.453) was attached (in copy), with a closing date of sale 17.11.95, referring to beans... up to 190/100†(it should be understood up to 190 grains per 100 grams) with an official price of US$ 1.300 (see the documentation of the PE contained in the envelope on pages 44 of the aforementioned file, in which the aforementioned copy of the DJVE is also contained, and see also copies 3 and 4 of the PE, on pages 4/9 of the same file).
From the inspection carried out by customs (Selectivity Commission-Customs Police), it was found that the beans were... with a grain content of between 191 and 220 grains per 100 grams, determining an official price of US$ 1.080/ton and therefore a fiscal loss in the form of a difference in refund (see pages 3 of the administrative acts), as a result of which on 7.8.96/954/1 - a violation of art. 3, paragraph a) was reported due to the incorrect official price being declared in the PE in question, with the aforementioned fiscal loss (see pages 29 and 2 back). On pages 25, the Selectivity Commission perfected the complaint, indicating that... what was declared in item XNUMX (of the PE) ... does not correspond to the committed DJVE, thus causing a fiscal loss (potential in this case) due to improper collection of refund. Previously, on page XNUMX, the tax loss had been reiterated and the difference in the tax base had been determined (this should be understood as the difference in the calculation base for the refund, that is, the difference with respect to the value of what was actually shipped - taking into account the higher official price declared and the lower official price determined in the complaint),
At pages 35, the opening of the summary was ordered, charging the exporter and the forwarder with the violation of art. 954 of the CA, in its subsections a) and c), and at the same time it was ordered to move them to the hearing of art. 1101 of the CA. At pages 37/41 back, the customs broker answered the hearing, and at pages 49 the exporter did so, adhering to the terms of the forwarder's presentation. At pages 53, the cause for argument was set forth, with the forwarder's argument appearing at pages 56 and back. At pages 58/61 the appealed judgment was issued, which resulted in a conviction of both defendants - for the violation of art. 954 subsection a), with a fine of one and a half times the determined fiscal damage, while (expressly) acquitting them for the violation of art. 954 inc. c) which had also been charged. Although not relevant to the issue, it should be noted that on pages 68/69 the superior approved the ruling as regards the aforementioned absolution ordered therein (art. 1115 of the CA). Finally, on pages 75 and back there is the certificate of payment of the amount of the fine imposed (payment which, reasonably, should be understood to have been made by the exporting firm, this being the case stated by the plaintiff in these proceedings and without any evidence from which it appears that the exporter had appealed the ruling).
V.- It should be noted that given the payment of the fine previously indicated and the joint nature of said fine - the plaintiff, as a customs broker involved in the processing of the PE in this case, appeals the customs ruling with the (legitimate) purpose of obtaining its revocation primarily in respect to him (this given the fundamental nature of his defense, in the sense that he invokes that he is not responsible for the imputed infraction because - he claims - he has fulfilled his obligations, art. 908 of the CA, that is to say due to individual and personal circumstances), and therefore with the evident interest that the antecedent not be established.
The appeal is therefore procedurally admissible, even though, as seen, the exporter should have paid the fine imposed jointly. It is also worth noting such procedural admissibility despite the fact that the plaintiff, convicted of the violation of art. 954, paragraph a) of the CA, when alleging in the customs summary (see pages 56 back in fine of the administrative acts) expressly agreed to the violation provided for in paragraph a) (at that time it was only requesting acquittal for the violation provided for in paragraph c)); The above, and without considering other possible arguments (and except in the case of the exercise of the power of arts. 930 and 932 of the CA and its effects), fundamentally due to the criminal nature of the issue and because such acquiescence was prior to the judgment (so it could not be assimilated in any way to consent to the judgment, the latter being an act of a jurisdictional nature and therefore with the effect of res judicata once consented to, arts. 1139 and 1183 of the CA).
VI.- That first of all it is necessary to clarify, or specify, in what terms and/or in what specific way the infringement for which the appealed sentence was imposed has been configured in the case and that the exporter would have consented in this regard.
If we rely exclusively on the complaint on fs. 3, it would appear that the alleged infringement did not exist, that is, it would appear that in the case an inaccurate statement that falls within the scope of art. 954 of the CA had not been made.
Indeed, such an inaccurate declaration is only possible in the case of a declaration that is enforceable before the customs service (in one of the suitable documents that may contain it), that is to say, a declaration that is suitable for being inaccurate, or likely to be so, must be given, and this enforceability (tariff item, nature, species, quality, quantity, origin, destination, condition, price, and any other element necessary for ….) comes precisely from the law or regulation (conf.: arts. 332 and 333 of the CA); but it is not a mandatory declaration, even if it is mandatory that it be recorded or documented (conf.: arts. 344, 835 and 836 of the CA and 95 and 96 of decree 1001/82), everything related to the data and/or calculations of the liquidation, both of the taxes and the incentives to export, since it is clear that the determination and application of the legal regime applicable to the merchandise that is exported (that is to say, both the tariff regime and the refund regime, and other regimes, such as prohibitions) is the responsibility of the customs service (art. 339 of the CA), precisely on the basis, where appropriate, of those data of mandatory declaration, whether they were confirmed or whether they were eventually observed, and because the cited norms referring to the liquidation data and/or relative to the legal regime that the documentarist is required to record do not refer to any declaration.
Consequently, and insofar as it may be relevant to the case at hand, it is the opinion of this Chamber G that the customs service may and must determine the correct amount of the refund and, if that were possible with only the data provided by the exporter in its required declarations, it would not be an inaccurate declaration under art. 954 of the CA although, needless to say, it would be an inaccurate statement of a different nature to that of said required declarations, which would be the elements that, based on data in the required declaration, result directly from the law or the applicable legal regime, such as, for example, inaccurately or incorrectly stating a tariff level rate or the applicable official price (conf.: judgment of 3.11.99 in re NIDERA SA case TFN 10.051-A); and therefore a distinction must be made (for example) between the inaccurate declaration of the FOB price actually agreed (or of some other qualitative or quantitative element that affects the taxable base or the calculation basis, or that affects the determination of a tariff rate or an official price), which does fit within the figure of art. 954, and the inaccurate declaration of the applicable official price (or of the applicable rate) whose accuracy depends on what the legal regime determines (conf.: cited judgment).
Then, in the case (and it is reiterated - according to what was reported on pages 3 of the administrative acts), in the PE and in what is of interest here, it has been declared in item 2: beans with a weight between 191 and 220 grains per 100 grams, with an official price of US$ 1.300/Ton, and the verification resulted (qualitatively nature, species, quality-) exactly the same merchandise (it should be noted that in a smaller quantity than declared but this is legitimately permitted, art. 346 of the CA), that is, beans with a weight between 191 and 220 grams, but with an official price of US$ 1.080/Ton (it should be noted that it is not in any way disputed that the latter was the official price applicable to the resulting merchandise, that is, to the one declared in the permit and verified as complying); Therefore, and for the reasons set forth in the preceding paragraphs, having incorrectly stated the official price alone could not be an inaccurate declaration under Article 954, when based on the data of the required declaration (in this case, the aforementioned qualitative data, plus the resulting amount less than that declared, and given that it was an operation under the terms of Law 21.453, application of the legal regime in force on the date of closing of the commercial operation, a date in turn declared), the customs service could perfectly well determine the applicable official price.
However, in the above-mentioned improvement of the complaint (page 29 of the administrative acts) it was established that the infringement, the inaccurate declaration, was based on the fact that… what was declared in item 2 (of the PE)… does not correspond to the committed DJVE, thus causing fiscal damage (potential in this case) due to undue collection of reimbursement; and this is reflected in the appealed judgment.
Therefore, in this sense, the imputed difference occurs between what was declared in the DJVE and the result of the customs inspection with respect to the merchandise presented for shipment (and shipped) supposedly covered by said DJVE, or merchandise that was exported with imputation to said DJVE; and here it is worth highlighting that such a difference is complete, since what is recorded (declared) in the DJVE is kidney beans… with grains of up to 190 grains per 100 grams, with an official price (corresponding to that merchandise with that grain and according to the closing date of sale 17.11.95 - and given that it was an operation according to law 21.453) of US$ 1.300/Ton, and the verification showed merchandise of a different quality (kidney beans with grains between 191 and 220 grains per 100 grams) and with a lower official price, of US$ 1.080/Ton (which, the latter, constitutes the effect of the potential tax loss required by the figure of inc. a. of art. 954).
Under this approach, the point of analysis is to determine whether the declaration contained in the DJVE is a declaration that may be inaccurate in the terms of art. 954 of the CA; and the undersigned understand that it is indeed, insofar as, as can be seen in the DJVE itself of the case at hand, its content is a declaration that is made before the customs service (this was the case at the time of this DJVE, given that before it was made before the National Grains Board), to make an export destination for consumption, or more than one (this declaration implies the obligation to make it or make them, and within a period for this purpose with automatic extension), of certain merchandise (agricultural products under the regime of law 21.453) that will obviously be subject to verification in the processing of the respective boarding permits; It can be observed in this regard that the DJVE itself specifies that its falsification (that of the declaration contained in the DJVE) will make the person responsible liable to the sanctions provided for in laws 21.453 and 22.415.
And it is the described difference, under the preceding approach, which has constituted the alleged infringement in the case and for which the sentence appealed by the plaintiff has been applied.
VII.- On the other hand, given the claim made by the plaintiff (invoking article 908 of the CA) as the basis for its claim for exclusion of liability in the case - it claims to have fulfilled its obligations, it should be noted that according to the doctrinal and jurisprudential development of this aspect, the customs broker is in principle exempt from liability, in accordance with the aforementioned article 908, when it is in some way proven that its declaration has complied with the instructions given by its client (importer or exporter) and it has been understood that this is the case when it complies with the contents of the complementary documentation (commercial invoice, bill of lading, certificate of origin, etc.) for this purpose.
In the matter of export, given that when documenting the request for destination the commercial invoice is not presented and obviously the knowledge is necessarily issued after and as a consequence of the shipment that results from the issuance of said request (in addition in the case at hand there is no certificate of origin), normally there is no complementary documentation. In turn, given the nature of the procedure in the export operation, unlike that of import, in the former it depends on the documenter that his committed declaration always prior to shipment and the presentation of the merchandise for shipment - is true or inaccurate, since merchandise of the same quality as that which had been declared must be presented for shipment, and in no greater quantity (under certain conditions it is possible in a smaller quantity, art. 346 of the CA). Consequently, it is the duty of the document-holder, in the case inherent to the activity and management of the clearing agent who - if he were to act - is in charge of carrying out all the procedures of the customs operation on behalf of the exporter, to ensure that the declaration made is truthful as far as reasonably possible and/or to prevent it from being inaccurate. Therefore, the clearing agent must be held responsible for any inaccuracy (presenting for shipment merchandise of a different quality or in greater quantity than that documented), due to not having complied with the obligations under his responsibility, when the difference could have been reasonably observed by him based on his technical knowledge. Therefore, this will not occur, in principle, when, for example, without additional documentation describing the merchandise, the inaccuracy results from a chemical analysis of a sample, or, where appropriate, of the units contained inside the packages to be shipped. However, when supplementary documentation is not usually submitted, as has been the case here, it must be understood as an obvious duty of the document-giver to observe the exact correspondence between said documentation and the committed declaration.
Indeed, it is still possible that the forwarder, when making his own declaration in the shipping permit (together with the exporter), complies with the instructions and/or information provided by the exporter (and even assuming hypothetically that in the present case this would have happened), but, if when presenting the permit for registration he also presents that complementary documentation and the merchandise described in the latter differs qualitatively from that declared in the permit, at least at that time (that is, even before presenting the merchandise for shipment) the forwarder has sufficient elements to avoid the inaccuracy.
Now, since in the present case the clearing agent evidently had in sight the DJVE or its copy and/or was aware of it (this since the copy of the DJVE contained in the envelope of the PE added to the administrative acts was presented with the permit and the DJVE and its closing date of sale were recorded in the permit declaration), and it, in addition to complementary documentation, constituted in itself a required declaration (see the last two paragraphs of chapter VI above), he undoubtedly had the possibility and the duty to avoid the inaccuracy that would necessarily occur in this case based on the fact that, as was seen, there was no correspondence between the description of the merchandise in the DJVE and the description made in the permit; since (if the resulting merchandise corresponded to one of the two declarations), either the resulting merchandise coincided with that declared in the DJVE, in which case the inaccuracy would occur in the permit declaration, or it coincided with that declared in the permit, in which case the inaccuracy would occur in the DJVE, as the latter occurred in the case at hand.
It is therefore evident that in this case the shipper has not fulfilled his obligations and, on the contrary, his failure to comply in the indicated sense must be understood as negligent.
However, even though the forwarder, in the manner described, has made possible - insofar as he did not avoid it when he could and should have done so - the inaccuracy that led to the configuration of the infringement charged in the case, such inaccuracy is objectively attributable to the person who personally made the declaration, which was the exporter (who was therefore convicted and paid the fine in this regard) and not the forwarder. From this point of view, despite the aforementioned negligence of the forwarder, the punishable act was the declaration in the DJVE (which became inaccurate when the merchandise was later presented for shipment), and it is clear that the person who should be sanctioned for it in the terms of art. 954 of the CA (as it also resulted in potential fiscal damage) is the one who makes the declaration, while the solidarity of the forwarder for the infringement for which the importer or exporter is responsible is not legally established (as was established conversely in art. 907 of the CA- or in the case of the transport agent with respect to the infringements of the carrier, art. 908 of the CA-). Consequently, the forwarder is not responsible in the terms of the imputed infringement for which the appealed sentence was applied.
However, given the alleged negligence of the plaintiff, which has resulted in her breach of her duties and which could have caused the fiscal damage indicated here, and given that such conduct - for the reasons stated above - does not fall within art. 954 of the CA, nor does it have any other specific sanction provided for, it is appropriate to reclassify the fact as an infraction of art. 995 of the CA, and therefore apply to the plaintiff a fine that is considered reasonable in the sum of five hundred pesos ($ 500).
It should be noted that the restructuring carried out complies with the provisions of art. 1102 in fine of the CA (obviously applicable in this instance), that is to say that only the legal framework is varied without the need for a new hearing, since from the beginning of the summary proceedings (that is to say before the hearing of art. 1101 of the CA) the imputed fact has been the lack of correspondence between the declaration of the DJVE and the declaration of the PE (see fs. 29 of the adm. acts), and it has already been seen that the lack of due observation of that fact by the clearing agent - is what motivated the possibility of fiscal prejudice.
VIII.- That the costs must be imposed in the order caused by the result achieved and insofar as said result is arrived at for reasons introduced ex officio, to which it should be added that it is the opinion of this Chamber G that the aforementioned method of imposition (in the case based on the fact that the aforementioned reasons would be sufficient merit in this regard) is applicable in the case by virtue of the provisions of art. 184 of law 11.683 according to the text given by law 25.239, of mandatory and necessary application to the powers of this Court in customs matters (art. 1163 of the CA), with which the text of said art. is rendered void. 1163 given by decree 1684/93 (on the grounds of this criterion see the majority votes regarding the referred aspect - in the judgment of Chamber E of this TFN in case 10.694-A MOLINOS RIO DE LA PLATA, dated 16.11.2000).
Therefore IT IS RESOLVED:
Partially revoke Resolution No. 10.598/98 of the Head of the Contentious Department of the DGA issued in file EAAA No. 606.513/96 and appealed in this case, with regard to the fine imposed on the plaintiff firm for the infraction alleged therein, and reclassify the fact as the infraction classified by art. 995 of the CA, consequently applying to the plaintiff a fine of five hundred pesos ($ 500); with costs to be paid accordingly.
Register, notify, return administrative acts, and file.
This document is signed by Drs. Jorge C. Sarli and Elena D. Fernández de la Puente because Dr. Rodolfo H. Cambra is on leave (art. 1162 of the CA).
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