Boggio Alicia v. DGA without appeal; expt. No. 18.053-A

In Buenos Aires on the 5th day of the month of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the last appointed member in the presidency, in order to resolve the case entitled: "BOGGIO ALICIA v. DGA s/ appeal"; file No. 18.053-A
Dr. Catalina García Vizcaíno said:

I) That on pages 5/8 back, Alicia Boggio, in her own right, files an appeal against Resolution No. 4495/02 issued on 8/10/02 by the Customs Legal Procedures Department of the DGA in file No. ADGA 601.532/97. She requests that the statute of limitations for the criminal action be declared, which is believed to have begun on 1/1/98, but which is believed to have been interrupted with the opening of the summary of this case dated 8/5/97, and which is believed to have ended on 9/5/02. She refers to the five-year statute of limitations established by the Customs Code and states that the interruption causes the initial period to disappear and creates a new period that begins to run from the day following the date of the opening of the contentious summary. She cites case law that she deems applicable. In subsidy, the company states that, as a customs broker under DI 26.957-8/97, it documented the importation for consumption of various products originating in the Republic of China, including coloured and black and white pencils, which at that time were subject to anti-dumping duties. It indicates that, when formalising the import clearance, it declared the values ​​and quantities that the company "had reported were not covered because their overall value was higher than the minimum established in resolution 534/95" of the Ministry of Economy and Public Works and Services. It adds that the physical inspection carried out by customs at the company's address had detected that the declared quantities were lower than those arising from the inspection and that, consequently, anti-dumping duties should have been paid. He maintains that, in his capacity as customs broker, he limited himself to the instructions and documentation presented by the company, and that the settlement made by customs for the calculation of the fine is erroneous. He refers to the notification of default and states that it was notified at the customs offices contrary to what is established in art. 1002 CA. He explains that at the time of making the declaration, it was not mentioned that the merchandise was subject to the payment of antidumping duties since the documentation that had been delivered to him did not show that the values ​​were lower than those established in the norm. He points out that in item 12 he declared 27000 units of colored pencils at a FOB value of US$ 2670, which gives a result of 187,5 gross (12 units x 12 units), which is the measure that the Ministry of Economy would take, at a unit value of US$. 14,24, an amount higher than the US$ 9,18 established by law. The court concludes that the court has complied with its obligations. It offers evidence and requests that the customs resolution be revoked, with costs.
II) That on pages 21/26 the public prosecutor's office contests the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It considers that the infringement existed since the customs service detected the inaccurate declaration, so the arguments put forward by the plaintiff would not be viable. It points out that the plaintiff had not offered any evidence in the administrative file, so it would not be appropriate to make room for the production of the same; it cites art. 1101 of the CA and law 25.239. It adds that to affirm the contrary would imply a violation of the principle of preclusion. It emphasizes that the infringement provided for and penalized by art. 954 par. a) is attributable to the plaintiff, since it is a difference that, if it had not been noticed, could have caused fiscal damage. It cites case law. The Court concludes that there is a genuine legal duty on the part of the declarant to the tax authorities, with respect to the veracity of the statements made. It reserves the right to appeal the federal case and requests that the appealed decision be confirmed, with costs.
III) That at fs. 27 I ordered that the exception of prescription raised by the plaintiff be dealt with together with the merits of the case. At fs. 58 the proceedings are moved to judgment.
IV) That on page 1 of file EAAA 601.532/97 there is the complaint report No. 84/97 in relation to DI No. 26957-8/97, in respect of which differences in quantity were found, with anti-dumping duties having to be paid according to MEYOSP Res. 534/95, resulting in a tax loss of US$ 43.459,68. On page 4 a report is issued which establishes a difference in quantity "with anti-dumping duties having to be paid according to MEYOSP Resolution No. 534/95, resulting in a tax loss of US$ 43459.68". On page 5 the selective verification is shown. On page 6/27 copies of DI No. 26957/97 are glossed. On page 33 the opening of the summary is ordered and the proceedings are brought to the attention of the firm Casa Breyaui SA and the customs agent. At pages 38 the parties are declared in default. At pages 44/45 Resolution No. 4495/02 is issued, appealed in this case.
V) That it is appropriate to examine the defense of prescription raised by the accused.
That at the time of the events the statute of limitations for the Treasury's action to impose fines was regulated by the Customs Code, which, in its art. 934 establishes that: "The action to impose penalties for customs violations shall expire after five years", a period which, according to the provisions of art. 935, begins to run "on the first of January of the year following the date on which the violation was committed or, if it cannot be specified, on the date of its verification".
That according to the regulations transcribed above and what is stated in the previous point, the five-year period mentioned must be computed from January 1, 1998, given that the imputed inaccurate declaration was made on 14/2/97 for DIT 26957-8/97; therefore, if the prescription had not been interrupted, it would have taken effect on 1/1/03.
That the order to open the summary of 8/5/97 (page 33 of the previous administrative proceedings) did not have the capacity to interrupt the prescription, since the calculation of this had not yet begun. Only a prescription in progress can be interrupted or suspended.
That, consequently, it can be inferred that the prescription did not operate in the present case, since the PLA Resolution No. 4445 of 8/10/02, notified to the appellant here on 27/12/02 (pages 44/45 and 47/vta.), interrupted the prescription in the terms of art. 937 inc. d) of the CA.
I am in favor of not imposing costs on the plaintiff for this issue, given that it has been resolved ex officio, since the Treasury did not consider it in its response on pages 21/26.
VI) That the claim of preclusion formulated by the fiscal representative on pages 23/24 of the proceedings invoking Law 25.239 cannot prosper, since Article 1145 of the CA amended by this Law contemplates as an exception to the procedural burden of offering all the evidence at the customs office the "subject matter of infractions", such as that at issue in this case.
VII) That the plaintiff did not produce any evidence regarding her statement that she "declared the values ​​and quantities that the company had reported" (page 6 of the case), since she did not submit any instructions or complementary documentation, despite the fact that the burden of proof falls on the customs agent in accordance with the provisions of art. 908 of the CA.
That, despite the fact that the appellant had the opportunity to produce evidence in her defense before this Court, she was unable to prove her assertions.
That, however, in the case of a criminal matter, the undersigned issued the measure to better provide on page 39 of the proceedings, which was produced on page 50 of the proceedings, from which it appears that the plaintiff is correct regarding the amounts declared.
In order to clarify the underlying issue to be decided, I prepare the following table, taking into account that the gross amount is equivalent to 144 units:

That the declared quantities and the type of merchandise in items 11.1 and 12.1 were as declared, except for the settlement of the anti-dumping duties, which is why I have a reasonable doubt that leads me to apply the principle of art. 898 of the CA, by virtue of the provisions of art. 957 of the CA, since this Court has held that if all the elements relating to the merchandise were indicated and a complete and truthful declaration was made with them, the presentation of erroneous or omitted settlements or calculations is not punishable (TFN, Court E, Molfino Hnos. SA, 8/5/96), and that when the declaration is correct in relation to the characteristics of the merchandise, the lack of settlement of the specific duties is assimilated to the situation contemplated in art. 957 of the CA, for which reason it was decided to revoke the fine and confirm the taxes (TFN, Sala E, EGE SA and Fernando Echagí, dated 5/10/95). As regards these items, costs should not be imposed on the Treasury, given that the principle of art. 898 of the CA is applied.
Although there are differences in items 12.2 to 12.4, it should be noted that from commercial invoice No. 2057712/96, a copy of which appears in the container envelope on page 50 of the case, it appears that the appellant complied with the amounts stated in terms of articles 540, 520 and 560.
That, therefore, in this regard I consider that it has been demonstrated that the plaintiff complied with the obligations under its responsibility in the terms of the cause excluding liability of art. 908 of the CA.
That the Supreme Court, in re Garibotti, Armando (Fallos, 287:191), held that the customs broker who, in fulfilling his obligations, abides by the statements made by the importer and by the supplementary documentation, is, in principle, exempt from liability, unless he incurs in personal acts that compromise him. As stated by CNCont.-Adm. Fed. Cap., Room 4, in re Nadia SCA, dated 28/4/83, there is a reversal of the burden of proof, with the obligation to prove the existence of grounds for exculpation falling to the broker. Similarly, Room 1 of CNCont.-Adm. Fed. Cap., in re De Fabriziis and D'Orsi SRL, dated 19/10/82, pointed out that the Chamber's acquittal history in this matter requires that the party has proven that it complied with its obligations, or that such circumstance arises from the administrative history considered when making the decision.
In summary, the grounds set forth above allow us to infer that the appellant customs agent did not deviate from the complementary documentation, and therefore, the exception of art. 908 of the CA is applied to it, in accordance with the provisions of arts. 898, 902 and related articles of the CA.
It is appropriate that in this regard no costs are imposed on the DGA, since the exculpatory cause resulted from the measure to better provide ordered by the undersigned.
Therefore, I vote:
1°) Reject the exception of prescription raised by the plaintiff, without costs.
2°) Revoke PLA Resolution No. 4495/02, regarding the customs agent Alicia Boggio. Without costs to the DGA.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Reject the exception of prescription raised by the plaintiff, without costs.
2°) Revoke PLA Resolution No. 4495/02, regarding the customs agent Alicia Boggio. Without costs to the DGA.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)