Inaccurate declarations: self-reporting. Customs agent who does not specifically report the infringement. Principle of customs inspection. Difference in value (paragraph c, paragraph 1 of art. 954 of the CA): import and reshipment suspension destinations are treated as definitive imports. Infringement of risk of payment abroad of an amount that was not due. Graduation of the fine: the agent presents a reason for reduction.
In Buenos Aires, on the 20th day of September 2002, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the latter presiding, in order to render judgment in the case entitled: BCD SRL v. General Directorate of Customs, s/appeal, File No. 16.877-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 11/14 the appellant, through its representative, files an appeal against Resolution No. 7026/00 of 30/11/00, of the Customs Legal Procedures Department, issued in file EAAA No. 602.092/98, by which it is convicted of violating art. 954, paragraph c) of the CA, imposing a fine in the amount of $59.370. It claims that the presentation of its customs broker, dated 24/10/97, constituted a self-report due to the existence of an inaccurate declaration; therefore, it requests the application of art. 917 of the CA and that the summary conducted be considered null. It also maintains that the conduct described by paragraph c) of section 1 of art. 954 of the CA, considering that there would have been no obligation to pay any sum, nor a previous payment. It indicates that it declared to import a Heritage brand, model and version device, when in reality they sent other merchandise of a much lower value with the purpose of being exhibited at the Cable Television Conference held in Buenos Aires on July 28 and 31, 1997. It points out that after their exhibition they had to return to their place of origin, for which reason they should not pay duties, since it was a temporary import. From this it infers the lack of classification of the aforementioned inc. c) of art. 954 of the CA Warns that Customs erroneously assessed the background of the case, given that the complaint filed by Customs is dated 4/3/98 (page 3 of the Administrative Acts), but the self-denunciation made by the Customs Broker is dated 24/10/97, and that although it is paginated as page 1, it is not at the top of the file. It points out that it attempted to re-ship the merchandise, but Customs did not authorize its departure via courier, and that the merchandise remained at all times in the primary customs zone and under Customs custody. Lastly, it states that there was no intention to obtain a benefit by declaring a value higher than that which finally corresponded to the case and that, in addition, there was no fiscal prejudice, since the merchandise in question does not pay duties because it was entered for the purpose of exhibition and subsequent return to the place of origin. Requests that the contested resolution be revoked, with costs.
II) That on pages 33/41 the fiscal representation answers the transfer that was duly conferred on it. It denies each and every one of the facts and the right invoked by the opposing party that are not the subject of an acknowledgement on its part or arise from the administrative proceedings. It makes a brief summary of the proceedings. It states that the plaintiff has not provided elements to the case that refute the imputation made by it, for which reason it should be condemned due to the existence of an inaccurate declaration. It maintains that the Air Waybill clearly describes merchandise that does not correspond to that which was found at the inspection. It indicates that, in this regard, the plaintiff refers to the commission of an involuntary error in the re-shipment document. It points out that a manifest negligence has been revealed since the PA chosen by the documenting party had nothing to do with the resulting product. It notes that the plaintiff does not dispute the correct tariff classification established by the customs service. It notes that the sanction is the necessary consequence of the infringement of the duty of the administered to commit his declaration in an exact and truthful manner, and constitutes the means through which the legal system protects the principles of the prior Committed Declaration, and the Confidence Clearance, of the merchandise on which our customs control system is based. It argues that if the committed declarations are analyzed, it can be concluded that we are faced with the infringement whose legal type and legal consequence are prescribed by art. 954 inc. c, since this arises from a clear assessment of the submitted documentation. It adds that according to art. 234 ap. 2 of the CA, the declaration referred to in section 1 must indicate, in addition to the requested destination, the PA, nature, species, quality, state, weight, quantity, price, origin, provenance, any other circumstance or element necessary to allow the correct tariff classification and valuation of the merchandise in question. It cites jurisprudence. Rejects the plea for self-denunciation. Offers evidence. Requests that a judgment be issued, confirming the appealed customs ruling, with express imposition of costs.
III) That on page 44 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
IV) That on page 1 of file No. 602.092/98 there is the complaint report dated 4/3/98, drawn up by the Ezeiza Verifications Division, regarding the control of the documentary and the subsequent verification of dispatch 97 073 RE06 000148 P, resulting in merchandise with a difference in taxable bases of US$ 39.997,82. On page 9 there is file No. 11.412 dated 24/10/97, by which the customs broker reports that an error was made. On page 3 of this last file, the request for Re-shipment for suspensive storage destination, made official on 9/9/97, and its complementary documentation, among which are the commercial invoice and the Daughter Guide 8485196661, appear in an envelope. On page 4. The Verification Division reports that Air Waybill No. 8485196661 and the attached invoice declare exhibition materials and hanging posters and brochures worth $40.000, declaring in the reshipment instruments, devices, and models designed for demonstrations PA 9023.00.00.100F for said value, while the verification revealed a package containing 6 rolls of self-adhesive tape PA 3919.10.000L and 2 advertising sheets PA 4911.10.90.900 J. At fs. 10, the opening of the summary is ordered in the terms of art. 1090, inc. c) of the CA and the appellant is given notice, imputing the alleged violation of art. 954, par. 1, inc. c) of the CA At fs. 23/vta. The appellant responds to the hearing. On pages 33/37, Resolution No. 7026 is issued, which is the subject of the appeal.
(V) That the appellant declared, on 2/9/97, in its request for a suspensive destination for storage warehouse, the import of merchandise of Position SIM 9023.00.00.100F, with a FOB value of US$ 40.000. Inside the container envelope -in which this request is found- is added the commercial invoice issued on 16/7/97, for exhibition material, for a value of US$ 40.000 and the Air Waybill 84885196661 which states the same value and concept. On 9/9/97, the request for reshipment on the suspensive destination of storage was made official, stating the same tariff position and FOB value (on container on page 3 of file No. EA 11412/97).
It is not disputed that the verification yielded: 6 rolls of self-adhesive tape of PA 3919.10.000L for a FOB value of US$ 18, and 2 advertising sheets of PA 4911.10.90.900J for a FOB value of US$ 400 (see pages 8 of the previous administrative records).
That the plaintiff's declaration implied a customs value of US$ 40.445,45, while the merchandise resulting from the verification had a customs value of US$ 447,49.
That art. 917 of the CA provides: When the person responsible for an inaccurate declaration communicates in writing the existence of the same to the customs service before the latter has noticed it by any means or before there has been a start of customs inspection or before the preparatory acts of the clearance ordered by the verifying agent have been initiated, the minimum amount of the corresponding fine will be reduced by 75% and, without the need to proceed with the opening of a summary, the pertinent rectification will be ordered (emphasis added).
I consider that the presentation of the customs agent on page 1 of file No. 11412 does not fall within the scope of the self-reporting, since although it is dated 24/10/97, he did not specifically inform customs of the infringement committed.
That, in effect, the aforementioned dispatcher indicates that on the occasion of the event called Jornadas de Televisión por Cable 1997, held in Buenos Aires, between July 28 and 31, 1997, the Heritage company sent catalogs and a floor sample for said event; that said cargo was taken by the DHL company and not delivered due to lack of documentation; that when the date of the event had expired, we were asked to reship the merchandise and due to a regrettable error we were provided with the information that it was one (1) device, when in reality the invoice that has been added to the reshipment is not the corresponding one.
The customs agent says nothing about the customs operation that corresponded to the invoice for US$ 40.000 added to the requests for suspensive destination of storage and reshipment.
It also does not seem to clearly explain the reason why the suspensive destination of storage warehouse was made official on 2/9/97, while the days to which you refer in your note would have taken place from July 28 to 31, 1997 and the merchandise arrived on 19/7/97.
That, consequently, it can be inferred that in this case the existence of the specific infringement committed prior to the customs complaint of 4/3/98 was not communicated in writing.
That, furthermore, the merchandise having been transferred for reshipment on 8/10/97 (see Departure of Packages for Transfer - 72919 of the container envelope on page 3 of file No. 11412), the customs service set 13/10/97 for verification, which meant the beginning of a customs inspection that makes the alleged self-denunciation of 24/10/97 untimely.
That, in effect, in the request for re-shipment on suspensive storage destination in the section Observations/Other customs procedures it is stated that on 10/10/97 the Anchoring Brigade Section became aware and that: The verification will be carried out on 13/10/97 at 14:26.538 p.m. in the Ezeiza export warehouse (such certification bears the signature and seal of Carlos G. Lopresti - Leg. 6-XNUMX. Customs.
(VI) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes and sanctions - in relation to the protected legal interest - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service that, if unnoticed, causes or could cause, among other cases: a) a fiscal loss, will be sanctioned with a fine of 1 to 5 times the amount of said loss; c) the entry or expenditure from or to abroad of an amount other than that which corresponds, with a fine of 1 to 5 times the amount of the difference. For this last case, the appellant was convicted by Resolution No. 7026/00, appealed herein.
That art. 954 of the CA gives priority to the truthfulness and accuracy of the declaration, regardless of any subsequent activity by the declarant - except for the cases provided for in the law itself - or of the control that the customs service may carry out. This means that, in principle, the reliability of what is declared through the corresponding documentation is the basis of an entire system that does not depend on the greater or lesser efficiency with which the National Customs Administration carries out the control tasks assigned to it; on the contrary, adherence to such conditions tends to prevent, under the protection of the export or import regime, where appropriate, maneuvers that distort and pervert it from being perpetrated (CS, Subpga SACIE and I., of 12/5/92).
That the declarations relating to suspensive import and re-shipment destinations are similar to those corresponding to imports for consumption - art. 956 inc. c) of the CA-.
In my opinion, the declaration being examined herein, regardless of its impossibility of producing fiscal damage, implies the possibility of paying abroad an amount that was not appropriate, for which a commercial invoice for US$ 40.000 issued in the United States was even added, for which no clear justifying explanations were provided.
That the appellant's statement that there is no obligation to pay any sum, nor has there been a previous payment (page 12 of the case), does not prevent such a conclusion, since art. 954 of the CA not only contemplates figures of damage, but also of danger, by using the phrase that produces or could have produced.
Although the material had been sent for exhibition with the obligation to return it, this implies that, in the event of its loss, the appellant had to pay its supplier the amount shown on the invoice.
That, consequently, the declaration under examination revealed the possibility of a payment abroad that was not appropriate and it is reasonable to infer that the illegal act imputed by customs was classified.
VII) That the customs has graduated the fine applied at one and a half times the amount of the difference (see pages 32/37 of the administrative antecedents), which I consider excessive, since it does not appear that the appellant had any previous record, to which is added the presentation of 24/10/97 to which I referred in point V, which although it does not have the scope of a self-report for the reasons stated above, constitutes an element to be considered for the graduation of the sanction in accordance with art. 915 of the CA.
That, consequently, I propose that the fine be set at the legal minimum ($39.580).
Therefore, I vote for:
1st) Modify Resolution No. 7026/00 of the Head of the Customs Legal Procedures Department, with respect to the fine applied to BCD SRL, setting it at $39.580 (thirty-nine thousand five hundred and eighty pesos). Costs according to the due dates.
2º) Once this notice has been signed, the appellant must pay, within 5 days, 2% of the amount of the fine for which she is ultimately convicted, as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871, 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) Modify Resolution No. 7026/00 of the Head of the Customs Legal Procedures Department, with respect to the fine applied to BCD SRL, setting it at $39.580 (thirty-nine thousand five hundred and eighty pesos). Costs according to the due dates.
2º) Once this notice has been signed, the appellant must pay, within 5 days, 2% of the amount of the fine for which she is finally convicted, as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871, under penalty of issuing a certificate of debt. Register, notify, promptly return the administrative records and file them.
