Buenos Aires, September 6, 2001
CARS AND SEEN:
File No. 14.500-A entitled BASSO SA. C/DGA S/REC. DE APELACIÓN, and
CONSIDERING:
I.- That on pages 11/18 back, the plaintiff firm, through its representative, files an appeal against the unnumbered resolution dated 14.08.2000/62/283, issued by the administrator of the Santa Fe customs office in file EA 2000 No. 46/60, by which charges Nos. 2000 to 1053/XNUMX were ratified against which said firm had filed an appeal under the terms of art. XNUMX inc. b) of the CA. The appellant refers in detail to the background of the matter, based on the charges made against it for the restitution of incentives paid for various shipping permits, charges that were challenged and ultimately ratified (ratified by the resolution appealed in this case) and that had been formulated by an incorrect deduction, in the opinion of the customs, from the FOB value of the exported product and to determine the basis for the refund, of the value of the temporarily imported inputs. In what is of interest here and without prejudice to raising arguments on the substantive issue as to maintaining the substantial inadmissibility of the customs requirement and/or the correct calculation of the liquidated and perceived incentives, the appellant raises, as a preliminary issue, the nullity of the appealed resolution on the grounds that it maintains that the rules of due process have been violated and in particular its right to defense, and this because, it claims, it was ordered to open the case for evidence and that provision would be made later on certain evidence offered, without this being made later, in addition to the fact that the files were not put up for argument and the regulated legal opinion was not issued, all of this without prejudice to the fact that the charges themselves lacked, in its opinion, the proper foundation, and for all of which it maintains that there has been, in fact, a deprivation of a jurisdictional instance (that of the customs sphere, which did not exist in the case). He cites case law that he considers applicable to the case with regard to the exception of nullity. He requests that the appealed decision be revoked and that (substantive issue) all charges brought be set aside.
II.- That on pages 28/31 the fiscal representative attaches the administrative acts background of this case (file EA 62 No. 283/00) and answers the transfer of the appeal. Without prejudice to referring to the merits of the matter (it affirms the substantial provenance of the customs requirement contained in all the charges in question by virtue of the fact that the calculation of the deduction of inputs on which such requirement is based corresponds), in what is now of interest it raises, as a prior and special pronouncement, the exception of incompetence of this Tax Court on the basis that in the case it affirms - the final resolution that enables the instance of said Court has not been issued, that is to say that its client (in this particular case the customs judge, administrator of the Santa Fe customs) has not issued a ruling up to now on the provenance or rejection of the challenge made, and therefore the administrative route has not been exhausted, and that only one opinion has been notified to the plaintiff.
III.- That at fs. 32 it is ordered to forward to the plaintiff the exception raised by the treasury. The plaintiff answers said transfer at fs. 33/34 back. At fs. 35 it is ordered to deal with the exception raised by the treasury as a prior and special pronouncement and at fs. 36 the order from the autos to the sentence is issued. At fs. 37 it is also ordered to deal with, together with the aforementioned exception of lack of jurisdiction, the exception of nullity raised by the plaintiff, extending in this regard the also aforementioned order from the autos to the sentence.
IV.- That according to the records of the administrative acts. In the background of this case (file EA62 No. 283/00), the customs service, based on a report from the staff of the Santa Fe customs office, dated 11.4.2000 (see pages 1/2 of the aforementioned file), referring to 15 shipping permits -individuated there- processed before said customs office and for which refunds were liquidated and paid, a report in turn made on the basis of the previous technical report No. 11/2000 SE FVEX (see pages 1/2 of the 32 pages added as page 3 to file EA 62 No. 283/00) referring to the same 15 permits and made by the respective technical department of the Rosario Customs Region, formulated 15 separate charges for which the restitution of refund amounts was demanded, which were the following: charges Nos. 46 to 60/00 of the aforementioned Santa Fe customs office (strictly speaking, these charges can be seen - see pages 5/19 of the administrative acts of file EA 62 No. 283/00 - are the charges signed by the officials of the Rosario Region who formulated the aforementioned technical report 11/2000 - and demanded payment, in each of the same charges, by an official of the Santa Fe customs office), such charges being based, in accordance with what was derived from the indicated reports, on the cause of incorrect deduction of inputs (this refers to the fact that, in the opinion of the customs officials, in those PE and to calculate the basis for the refund, a lower amount had been deducted from the FOB value of the exported product, in terms of the CIF value of the temporarily imported input - than the one that should have been deducted, thus resulting in a higher base than the corresponding one and therefore a refund amount in too much).
The plaintiff filed, on pages 22/27, against these charges, the challenge procedure in the terms of art. 1053 inc. b) of the CA, attaching the documentation found on pages 35/368. On pages 369 and through the Santa Fe customs, the challenge was processed, ordering that specific evidence would be provided in due time and the proceedings would be forwarded to the Technical Export Department (of the DGA) so that it could issue an opinion on the question raised (i.e. on what was the correct method for the deduction in the case - of the CIF value of the temporarily imported input). As a result of the intervention of said Department, on pages 380 a report that had already been produced by the INTI was added, which runs on pages 379 - linked to the input/product relationship (it refers to the merchandise resulting from the temporary import for active improvement), and on pages 381 and 382. 11 the indicated Department issued its opinion (in the sense of proceeding in accordance with the information provided by the INTI). On page 00 the Rosario Customs Region sent the proceedings to the Santa Fe customs office, stating that the INTI report ratified the opinion of the aforementioned technical report No. XNUMX/XNUMX (SE FVEX).
As a result of the above actions, the administrator of the Santa Fe customs office notified the plaintiff of the provision being appealed in this case (ratifying the contested charges), according to the notice on page 383.
Finally, at fs. 385 (and due to the warning at fs. 384 of supposedly a lawyer who issued an opinion for the Santa Fe customs office to the effect that what had been previously notified by the administrator would be the notification of a prior measure in the procedure) the plaintiff was notified of the procedural order that had been issued at fs. 369 regarding the challenge procedure.
V.- That the jurisdiction of this Court in the appeal at hand must first be analyzed.
From the above-mentioned review it is clear that in the case, in the jurisdiction of the Santa Fe customs office, the plaintiff was charged with 15 charges in relation to two EPs (the plaintiff's exports processed before said customs office). For said charges, the plaintiff was required to repay amounts received (excessively in the opinion of the customs office) as refunds, for the operations of said EPs.
It was also noted that the cause or motivation for such charges resulted from a criterion issued in a technical report (No. 11/00 SE FVEX) by the Rosario Customs Region addressed to the Santa Fe customs (and relating to the correct manner or method for arriving at the basis for calculating the refund and specifically regarding the CIF value of the temporarily imported input that should be deducted from the FOB value of the exported product), report to which, in turn, were attached the charges that had already been prepared by said Rosario Region (this Region had liquidated them and had expressed the cause and the respective amounts declared by the plaintiff and those that should be applied, as can be seen on pages 1/2 and 17/31 of the documentation added as pages 3 of the administrative acts, with the exception that those prepared charges were called pages 2 in fine - forms in accordance with which the charges should be formulated); That is to say, the Head of Section C of the Santa Fe customs office, to the same forms - strictly speaking, to the same forms that appear on pages 5/15 of the administrative acts - gave each one a charge number (charges 046 to 060/00) and notified them to the plaintiff; and thus resulted in the aforementioned 15 charges from the Santa Fe customs office - formulated to the plaintiff with respect to two PE of the plaintiff processed before the same customs office.
Such charges were, therefore, challengeable acts under the terms of art. 1053, paragraph b) of the CA.
The plaintiff, in those terms, contested the aforementioned charges (pages 22/27 of the administrative acts) and consequently the order on pages 369 of the administrative acts was issued by which the administrator of the Santa Fe customs (instructor and customs judge competent to process and resolve that challenge, cf.; art. 1018 section 1 of the CA and decree 618/97 and delegations made by the AFIP as a result) processed said challenge, opening the case for evidence and therefore ordering the addition of all the documentation provided by the plaintiff, taking into account the remaining evidence for its opportunity, and ordering as a preliminary measure - the referral of the proceedings to the Dept. DGA Export Technique to issue a statement on the matter (this is what would constitute a consultation - see pages 370 and 371 - which would give rise to a technical report or opinion).
The Department finally issued a ruling on page 381 of the administrative acts (addressing the Rosario Region), stating that, for the purposes of deducting the FOB- value of temporarily imported inputs,… the procedure should be as stated by the INTI in the Note on page 379. In turn, the Rosario Region (page 382) returned the proceedings to the Santa Fe customs office, stating that the indicated INTI Note ratifies the method applied in technical report No. 11/00 (SE FVEX) and as a result of this, the Rosario customs administrator himself informed the plaintiff (see page 383) that by higher order he was notified of the ratification of the charges in question, while also adding proceedings from the INTI, Dept. Export Technique and Rosario Customs Region (it should be understood that it referred to the actions taken in the indicated pages 379, 381 and 382 of the administrative acts).
Thus, once the regulated challenge procedure was filed and it had been processed (order to open evidence, etc.) by the competent customs judge, and by virtue of which a technical report requested as a consultation in said order was produced, the customs judge himself ordered, by means of a specific notification to that effect, to inform the plaintiff of the ratification of the challenged charges, and given the documentation that was said to be added in the notification and the reference to the superior order by which the charges were ratified, it is evident that the ratification ordered and communicated was in accordance with the criteria issued by the Technical Department of Exportation derived from the aforementioned consultation.
Regardless of the fact that this result was reached without providing the remaining evidence (which according to the procedural order on fs. 369 would be provided in due time) and the legal opinion of art. 1040 of the CA, aspects that are the subject of the nullity claim and that will later be analyzed for this purpose; regardless of the fact that the express and specific act separate from the aforementioned notification of the ratification of the charges - of the resolution of the challenge procedure - was not formally issued; and regardless of the correctness or incorrectness of the criterion (of the Technical Export Department) that motivated the ratification of the charges and the circumstance of whether the INTI report to which the criterion of said Department refers referred or not specifically to the aspect of what should be deducted from the FOB value to determine the basis for calculating the refund, these last aspects being pertinent to the substance of the matter, the truth is that the customs judge competent in the challenge ordered the ratification of the challenged charges and, although this was merely informing the plaintiff of a higher order (by saying higher order it was evidently referring to the fact that the criterion of the Technical Export Department stated that the procedure indicated should be followed -referring to the INTI report- since the Rosario Region stated that this report was ratifying the technical report that had motivated the formulation of the charges), such ratification was undoubtedly a resolution with an expression of its reasoning - regarding the substance of the challenge and specifically in the sense of rejecting it since its content clearly meant the confirmation of the charges in question by the competent customs judge - who could confirm or revoke them as a result of the regulated challenge procedure; and therefore such resolution has constituted, substantially, the final resolution issued in the challenge procedure and therefore the appealable act before this Tax Court in accordance with the provisions of art. 1132 par. 2 of the CA.
This conclusion is not altered by the fact that after the aforementioned resolution and before the appeal in this case was filed, on page 384 of the administrative acts it was stated that the notification of the opinion of the Technical Export Department was a prior measure in a challenge procedure (notification of a technical consultation) and that therefore the pending notification of the order processing the challenge procedure should be made (the one on page 369 ordering the opening of evidence, etc.), notification that was also made and also before the appeal in this case (see pages 385 and back), and also that no measures should be taken against the plaintiff until the challenge was resolved.
Such circumstance, given the indicated priority with respect to the appeal in the proceedings, could be analyzed as constituting the clarification provided for by art. 1041 of the CA (the only assumption in which the customs judge who issues the final resolution could modify it after it has been issued), precisely in the sense of what is expressed in the aforementioned action on fs. 384 of the administrative acts, or else susceptible to consideration by the doctrine of own acts, and thus with the effect of avoiding the appeal by the appeal in the proceedings.
However, as stated, this does not alter the aforementioned conclusion since both the action on pages 384 and the notification on pages 385 did not emanate from the customs judge from whom the final resolution appealed here emanated (but from another official, probably an expert from the legal service of the Santa Fe customs), and this should not lead to the presumption that the competent customs judge abided by the criteria of the aforementioned subsequent actions. Furthermore, and given the above, this mere notification on pages 385 did not mean - by its text and intrinsically - any modification of the previous resolution ratifying the charges and, for the plaintiff, who had been notified of said ratification, the last notification on pages 385 could well mean, merely, a late notification of a previous order, but by itself did not indicate in any way that the ratifying resolution was without effect so as to avoid the appeal before this Tax Court.
For the reasons set forth above, the exception of incompetence raised by the tax authority must be rejected.
VI.- That as regards the exception of nullity raised by the plaintiff, in the opinion of the undersigned it should also be rejected.
It should be noted that, apart from the way (already set out above) in which the decision appealed in the proceedings was given (that is, by the customs judge himself notifying or making known the ratification of the impugned charges, without a previous and separate act, by himself, which ordered what was subsequently notified by him) and that such ratification was the consequence of a superior order (also previously commented on in its meaning) given to the customs judge by a hierarchical superior in the administrative line, what is truly relevant is that, as already stated, the plaintiff filed a regulated challenge procedure against certain acts of the service (charges with demands for the restitution of refunds for exports) that were already substantiated, that said procedure had a process and the consequence of that process was the consultation and the respective technical report in response which in turn was the basis of what was ultimately resolved, and that the impugned charges were ratified (that is, confirmed), equivalent to the rejection of the challenge, ratification and/or rejection issued by means of a dispositive act, also founded (by reference to technical reports), which constituted the final resolution issued in that procedure, issued by the competent customs judge. From this perspective, the essential steps of the regulated procedure have been substantially fulfilled and the right of defense of the plaintiff has not been violated, who in turn has appealed before this Court the decision thus made.
As for the remaining evidence (the one according to the order on fs. 369 of the acts. Adm. should be provided in a timely manner and, ultimately, given what was finally resolved on the merits of the matter - it was not provided), it should be noted that the situation is undoubtedly equivalent in fact to a partial denial of the evidence offered (beyond the stated equivalence, the denial was also implicit since instead of providing it as anticipated, it was later decided simply and plainly to resolve without that evidence); and it is clear that a legal power of the customs judge is precisely to reject irrelevant, superfluous or dilatory evidence (or even determine that there is no merit to admit the case as evidence, arts. 1060 and 1061 of the CA), that is to say, that it considers it so, which as regards the exercise of that faculty - has undoubtedly been implicit in the case, without prejudice to warning that the explicit or express denial and by separate or autonomous act could have given rise to the plaintiff's appeal for revocation (art. 1129 of the CA). However, the nonexistence of the aforementioned formal and separate denial act, which would have given the possibility of the formal filing of said appeal, is not of sufficient magnitude for the nullity sought, not only because the resolution of the appeal, by the same judge who would have issued the act, would have caused execution (art. 1131 of the CA), but, decisively, because resolving without substantiating the evidence offered -which is substantially equivalent to formally denying said evidence-, even in the hypothesis that such procedural attitude had been arbitrary or manifestly inappropriate (point on which it is not necessary to open a trial), would not have had sufficient magnitude in the face of the effective possibility (in such case substituting the practically harmless appeal for revocation) that the evidence be offered and widely produced in the regulated appeal instance, as is legally provided for and as the plaintiff has done in the appeal in this case, so that declaring a nullity for such reason would mean, as the jurisprudence in this regard has peacefully understood, an undue or inappropriate nullity for the sake of nullity. As regards the fact that the cause of action was not presented for argument, this obviously follows from the absence of evidence, an absence previously explained; and with the exception that it was not appropriate to argue on the documentary evidence provided by the plaintiff when filing the challenge. Finally, in this regard, and for the sake of completeness, it should also be noted that the issue under discussion is presented, in principle, as a question of pure law, in the case - and without this meaning a prejudgment on the merits - the determination of what CIF value of the temporarily imported input should be deducted from the FOB value of the product being exported to determine the basis for calculating the refund, that is, either the lower value of the input without the value of the losses (according to the classification certificate) or the higher value of the input including the value of the losses (input/product ratio also according to the classification), in short the interpretation of art. 1st of the reimbursement regime of decree 1011/91, and for this purpose and in principle, the proceedings contain, in the opinion of the undersigned and considering the terms of the litigation, sufficient elements to resolve, especially if it is taken into account that the plaintiff, when challenging, has provided copies of the PE, the temporary import dispatches, and the classification certificates, all of which are the subject of the issue and which have not been disputed in their contents, in addition to the fact that their data coincide with the data of the respective charges and the technical report that constituted the basis of the charges and their ratification.
The same applies to the lack of sufficient scope to declare nullity, which should be noted with respect to the fact that the final resolution was issued without the legal opinion provided for in art. 1040 of the CA having been issued, especially when nullity for this reason is not specifically provided for, and when the contested acts themselves were founded and both these and the appealed resolution invoke a technical report from the superior.
Furthermore, it is obvious that the fact that the competent customs judge, in the present case, has decided to reject the challenge following and/or complying with an order from his hierarchical superior in the administrative line can have no relevance, since if this were substantially so and if he eventually should not deviate from the criterion of the response to the consultation - it would constitute in any case the fulfillment of a duty and what is of interest for the purposes of his judgment - is the substantial content of that order as the substantial content of the resolution itself and, of course, that the resolution and not the order - is issued by the competent administrative judge.
Finally, it should be noted at this point that the conclusion set forth harmonizes equitably with the conclusion of the previous chapter (rejection of incompetence), since if that exception had been admitted, there would have been no possibility of declaring any nullity, but specifically because all the reasons invoked for the nullity (this aside from the considered lack of sufficient magnitude of the defects produced) could in fact have ceased and/or been non-existent (that is to say that the remaining evidence and even the omitted legal opinion could be produced) if it had been concluded that the appealed resolution was not the appealable act and that in the ongoing challenge procedure - it was still necessary to reach that appealable act; but at the same time, concluding that the appealed act is effectively the appealable act, under the conditions in which such a provision was reached and given its unequivocal content confirming the impugned charges, emanating from the competent customs judge, could not equitably, despite its defects, result in its nullity.
For all the above reasons, the nullity raised must also be rejected; and in light of the overall result, the costs must be imposed in order (art. 1163 of the CA).
Therefore IT IS RESOLVED:
Reject the exceptions of nullity and lack of jurisdiction raised, respectively, by the plaintiff and by the tax authority; with costs in order.
Register, notify, and return the case to the 21st Nomination Committee to continue with the process.
This document is signed by Drs. Jorge C. Sarli and Elena D. Fernández de la Puente as Dr. Rodolfo H. Cambra is on leave (art. 1162 of the CA).
