Invalidity: the 5-day period of art. 1051 of the CA is not applied in the appeal made before the Tax Court. Violation of the right of defense: possibility of subsequent correction. Violation of suspensive destination regimes: possibility of a single extension in temporary imports. Late nationalizations. Fines: graduation. Recidivism: arts. 927 and 928 inc. a) of the CA.
Dr. Catalina García Vizcaíno said:
I) That at fs. 22/28 Bridgestone Firestone Argentina Sociedad Anónima, through its representative, files an appeal against resolutions Nos. 1311, 1314, 1665 and 1724, issued by the Customs Legal Procedures Department in files Nos. 603.972/97; 604.181/97; 603.973/97 and 604.626/97, respectively. It indicates that for temporary import clearances Nos. 1061-4/96, 1237-5/96, 1238-2/96 and 1460-9/96, introduced, under the active improvement regime governed by Res. ME I. and SP No. 72/92 and its amendments, batches of natural rubber for the manufacture of tires. It states that the admitted period of permanence of the merchandise, taking into account the extensions granted by the General Directorate of Customs in accordance with the first paragraph of article 5 of the cited resolution, expired between February 22, 1997 and March 14, 1997. It indicates that on January 22, 1997, the Company presented itself before the Secretariat of Industry and Commerce requesting authorization for an extension of the temporary imports documented in the aforementioned dispatches, given that there were circumstances that prevented the re-exportation of the inputs within the agreed term. He added that in May 1997, the Undersecretary of Foreign Trade refused to authorize the customs service to grant the extension of the period. He explains that the Technical Procedures Section filed the complaints against the Company that led to the initiation of proceedings on the grounds that the permitted periods of permanence of the merchandise had expired and that the Customs Legal Procedures Department issued the resolutions that are being appealed without the evidence offered having been produced. He raises the nullity of the appealed resolutions as an exception to prior and special pronouncement, given that he considers that the production of evidence was ignored when issuing the resolutions and his right to argue, which would affect respect for the constitutional guarantee of defense in court. Alternatively, it requests the revocation of the appealed resolutions or, failing that, the attenuation of the fines. It states that art. Article 266 of the Customs Code provides that the customs service may grant extensions of the temporary import period only once and for a period that may not exceed the original period. It states that the Code System was followed by Resolution ME and O and SP No. 72/92 when regulating active improvement traffic. It indicates that in this way it provided in its art. 5th that the period of temporary importation could be extended only once and could not be exceeded in any case and for any reason. It invokes the provisions of Resolution No. 477/93, which extended the deadlines to 720 days. It points out that, as provided for in art. 266 of the CA, while an extension request is being processed, the term for re-exporting the imported merchandise is temporarily suspended, a suspension that would extend for a period of 20 days, counted from the notification of the denial, which the text agrees to carry out said re-export. He adds that within the first 10 days of the aforementioned period, the importer may request authorization for the importation for consumption of the merchandise subject to temporary importation, in order to extinguish the obligations derived from the suspensive destination. The company maintains that it did not incur in the violations that were deemed to have been committed in the appealed resolutions, given that the final importation of the rubber was carried out while the deadline for complying with its re-exportation was suspended. He considers that setting the fine at twice the minimum is unreasonable, given that the background to the conviction contained in the ruling of the Capital Litigation Department No. 444/97 is of no significance, as it is a minor infraction that he allegedly committed in 1989 and that does not fall within art. 927 of the CA Provide proof. He requests that the appeal be granted.
II) That on pages 38/43 back, the fiscal representation answers the transfer that was duly conferred to it. It makes a brief summary of the facts. It denies each and every one of the facts that are not the object of its express recognition. It states that according to the Temporary Importation Regime, the temporarily entered merchandise is subject from the moment of issuance to the fulfillment of a condition and that this is the re-exportation before the expiration of the agreed term. It indicates that the plaintiff bases its presentation on the fact that the term would not have expired since it would have requested an extension from the Secretariat of Industry and Commerce. It maintains that from the letter of the contested resolutions it appears that the opposing party is not right, and that it is evident in the file that the importer would not have complied with the re-exportation in term of the merchandise imported temporarily by the Temporary Importation Offices. It indicates that the burden of proof of compliance with the obligations inherent to the Temporary Importation regime falls on the importer. Cites case law. Considers that as regards the nullity argued by the other party, said claim of nullity is inadmissible according to art. 1051 of the CA. Adds that the expiration of the term established by law presumes the consent of the act by the plaintiff, who comes late to file the nullity of said act. Cites case law. Explains that the special regime to which the plaintiff adhered states that the beneficiaries must strictly comply with their obligations, under penalty of application of the sanctioning regime provided for in the customs legislation. States that, taking into account what is established by the customs regulations and the fact of non-compliance with the obligation to re-export within the agreed term, their conduct affects the purpose taken into account for granting the regime. Cites case law. The plaintiff maintains that it is unquestionable that the punishable conduct materialized when the legal term granted elapsed, and the plaintiff did not comply with the obligations assumed as a consequence of the benefit of temporary importation, that is, the re-exportation within that period of the temporarily imported merchandise in the new resulting form. The plaintiff adds that as regards the argument that the fines would be unreasonable, this is not the case, because the Customs Code grants the power to graduate them between a minimum and a maximum, and that action has been taken in accordance with the law. It offers evidence. It requests that a judgment be issued, confirming the appealed customs rulings, with express imposition of costs.
III) That at fs. 46 the treatment of the nullity with the merits is arranged and the case is opened to evidence, which is produced at fs. 57/59 and proceedings added separately. At fs. 65 the proceedings are put to argument, making use of that right only the plaintiff at fs. 71/73 back. At fs. 75 the proceedings are called to judgment.
IV) That on fs. 2 of file No. 603.972/97 there is DGABAIMPT No. 25/97 which states that from the operational control carried out it appears that the consumer registration formulated on behalf of Office No. 732263-0/97 is untimely compared to the expiration of DIT No. 1237-5/96; therefore, a complaint is filed on fs. 1 in the terms of arts. 970 and 972 of the CA. On fs. 12 it is ordered to instruct summary in the terms of art. 1090 inc. c) of the CA. On fs. 27/29 the accused appears in legal time and form, answering the hearing and offering evidence. On fs. 30 there is the Certificate by which the accused proves having paid the taxes. On fs. 41/44 Resolution No. 1311/01 is issued, which resolves to condemn the firm Bridgestone/Firestone Argentina SA to pay a fine equivalent to twice the taxes that tax imports for consumption, while the tax obligation is cancelled.
That on fs. 2 of file No. 603.973/97 there is DGABAIMPT No. 23/97 which states that from the operational control carried out it appears that the consumer registration formulated on behalf of Office No. 73308-4/97 is untimely in view of the expiration of DIT No. 1238-296; therefore, on fs. 1 a complaint is filed in the terms of arts. 970 and 972 of the CA. On fs. 12 the opening of the summary is decreed in the terms of art. 1090 inc. c) of the CA. On fs. 17/25 the accused appears in legal time and form, answering the hearing and offering evidence. On fs. 25 there is the Certificate by which the accused proves having paid the taxes. On fs. 37/38 back. Resolution No. 1665/01 is issued, which resolves to condemn the firm Bridgestone/Firestone Argentina SA to pay a fine equivalent to twice the taxes that tax imports for consumption, while the tax obligation is cancelled.
That on fs. 2 of file No. 604.626/97 there is DGABAIMPT No. 164/97 which states that from the operational control carried out it appears that the consumer registration formulated on behalf of Office No. 732250-0/97 is untimely compared to the expiration of DIT No. 1460-9/96; consequently, on fs. 1 a complaint is filed according to arts. 970 and 972 of the CA. On fs. 11 it is ordered to instruct summary in the terms of art. 1090 inc. c) of the CA. On fs. 22/29 the accused appears in legal time and form, answering the hearing and offering evidence. On fs. 30 there is the Certificate by which the accused proves having paid the taxes. On fs. 55/58, Resolution No. 1724/01 is issued, which resolves to condemn the firm Bridgestone/Firestone Argentina SA to pay a fine equivalent to twice the taxes that tax imports for consumption, while the tax obligation is cancelled.
That on fs. 2 of file No. 604.181/97 there is DGABAIMPT No. 26/97 which states that from the operational control carried out it appears that the consumption record formulated on behalf of Office No. 74781-0/97 is untimely compared to the expiration of DIT No. 1061-4/96; therefore, a complaint is filed on fs. 1 in accordance with arts. 970 and 972 of the CA. On fs. 50 it is ordered to instruct summary in the terms of art. 1090 inc. c) of the CA. On fs. 60/67 the accused appears in legal time and form, answering the hearing and offering evidence. On fs. 68 there is the Certificate by which the accused proves having paid the taxes. On fs. 83/87, Resolution No. 1314/01 was issued, which resolved to condemn the firm Bridgestone/Firestone Argentina SA to pay a fine equivalent to twice the taxes that tax imports for consumption, while the tax obligation was cancelled.
V) That the customs office is not right regarding the application of art. 1051 of the CA in the present case (see page 40 of the proceedings), since the five-day period provided for by this rule applies unless there is a special provision that sets a longer period, which occurs in this case, since the claim of nullity was raised as an exception contemplated in art. 1149 of the CA, for which reason the 15-day period of art. 1133 of the CA applies.
That, however, the claim of nullity formulated by the plaintiff must be rejected because on 21/12/99 in File No. 603.973/97 the Customs Legal Procedures Department accepted the evidence offered by the plaintiff, which was produced on page 34 of said File.
That, consequently, on page 32 of file No. 603.972/97 and on page 69 of file No. 604.181/97, on 29/2/00, the Customs Legal Procedures Department accepted the evidence offered by the plaintiff, but since it was identical with the evidence requested in File EAAA No. 603.973/97, it ordered that it be subject to the results thereof.
That on 21/12/99 the Customs Legal Procedures Department ordered the opening of the case for evidence at fs. 32 of file No. 604.626/97, having occurred at fs. 45/48.
Although the appellant was not given the opportunity to appeal, she has had the opportunity to correct this irregularity before this Court.
That this is not an obstacle to the fact that file No. EXPMEYOSPD E. 061-000548/97 EMEC- and file No. 402.834/97 were added in this instance, since the response on page 34 of file No. 603.973/97 provided adequate grounds for the customs office to issue the contested resolutions.
It should be noted that it is Supreme Court doctrine that when the restriction of defense in court occurs in the procedure that is conducted in an administrative setting, 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 subsequent jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of 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 others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-).
That in this instance the appellant has had ample opportunities to produce evidence, with the consequent correction of any irregularity that may have occurred at the customs office.
That, on the other hand, it is doctrine of the Supreme Court of Justice of the Nation 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, such as, for example, the contradiction between the recitals and the operative part (cfr., among others, Scicolone, Manuel S. v. Prantera, Omar Alberto, et al., 26/11/91). It has also said that since the contested resolution is sufficiently well-founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39). It should also be remembered that judges are not obliged to consider all the evidence produced in the case, but only those that they consider conducive to its correct solution and that, by means of the federal remedy, there should be no attempt to convert this Court into just another ordinary instance ("Rulings", 274-35, 276-132 and 248, 278-135, among many others) (Rulings, 301-676).
That, for the reasons stated above, the exception of nullity raised on pages 24/vta. of the proceedings must be rejected.
VI) That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise...
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
That art. 266 of the CA provides that: 1 At least one month before the expiration of the agreed term and with well-founded reasons, the interested party may request an extension of the term from the National Customs Administration.
2. The National Customs Administration shall evaluate the reasons given and, if they are reasonable, shall grant a one-time extension for a period that may not exceed the original period. 3. In the event that it denies the requested extension, the National Customs Administration shall grant a peremptory period of twenty days from the date of notification of the denial to comply with the obligation to re-export for consumption. If the expiration of the original period is later than the twenty days, the latter shall be considered extended until the date of said expiration. Article 267 adds that Once the period for requesting the extension provided for in Article 266 has expired, the right to request it shall expire.
That a simple reading of this rule shows that the customs can grant an extension only once, which is why the request for a second extension dated 22/1/97 became manifestly inadmissible in this case, although this conclusion is not hindered by the invocation of the provisions of Resolution No. 477/93 before the Secretariat of Industry, Commerce and Mining, because, whatever the criteria based on the scope of this Resolution, the aforementioned Secretariat denied such request and reiterated its denial in the face of the appeal for reconsideration filed by the plaintiff (see pages 1/35, 80/83 Ref., 89 Ref. and 95 Ref. of file No. EXPMEYOSPD E. 061-000548/97 EMEC-).
That from the comparison of the actions and to clarify the question raised below a table is inserted relative to the situation configured for each of the DITs in question.
DIT No. Original expiration Expiration of the only extension admitted Date and number of the DI by which it was naturalized
1237-5/96 2/9/96 1/3/97 20/6/97. 73.263-0/97 1238-2/96 3/9/96 2/3/97 20/6/97.
73.308-4/97 1460-9/96 14/9/96 13/3/97 20/6/97.
73.250-0/97 partially nationalizes the referred DIT. The rest was exported by PE 74.701-8/97 of 26/2/97 and 75.682-5/97 of 28/2/97 1061-4/96 26/8/96 22/2/97 24/6/97.
TBU
From the examination of the preceding table it appears that the nationalizations were late, which is why the violation attributed by customs was established in this regard.
That the appellant does not specifically dispute the settlement that served as the basis for the application of the fines, but only their grading.
First of all, it should be noted that the appellant acknowledges the precedent of Ruling 444/97, although it considers that the infringement was of minimal importance. The invocation of art. 927 of the CA cannot prosper because it is a resolution subsequent to that of the facts analyzed herein, given that the appellant itself recognizes that the previous infringement dated back to 1989, which is why it undoubtedly predates those in question and, consequently, has the character of a repeat offender in the terms of arts. 927 and 928, paragraph a) of the CA.
That, however, I favor the fine being set at one and a half times the amount of the taxes that tax imports for consumption, taking into account that while it is true that the accused had the aforementioned background, it is also true that part of the merchandise was re-exported on time by PE 74.701-8/97 of 26/2/97 and 75.682-5/97 of 28/2/97, as well as that the rest, although late, was nationalized. To this is added that the appealed resolutions recognize that the appellant extinguished in its entirety the tax obligations derived from the expiration of the temporary import clearances in question.
Therefore, I vote for:
1st) To reject the exception of nullity raised by the appellant. With costs.
2nd) Modify PLA Resolutions Nos. 1311/01, 1665/01, 1724/01 and 1314/01, replacing the amounts of the fines applied with the amounts of $72.249,80 (seventy-two thousand two hundred and forty-nine pesos with 80/100), $72.264,10 (seventy-two thousand two hundred and sixty-four pesos with 10/100), $39.506,30 (thirty-nine thousand five hundred and six pesos with 30/100) and $73.293,30 (seventy-three thousand two hundred and ninety-three pesos with 30/100), respectively. Costs according to the due dates.
3rd) By signing this document, the appellant must pay 2% of the amounts of the fines for which she is actually convicted as a fee for actions provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Dr. Winkler said:
Which substantially adheres to 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) To reject the exception of nullity raised by the appellant. With costs.
2nd) Modify PLA Resolutions Nos. 1311/01, 1665/01, 1724/01 and 1314/01, replacing the amounts of the fines applied with the amounts of $72.249,80 (seventy-two thousand two hundred and forty-nine pesos with 80/100), $72.264,10 (seventy-two thousand two hundred and sixty-four pesos with 10/100), $39.506,30 (thirty-nine thousand five hundred and six pesos with 30/100) and $73.293,30 (seventy-three thousand two hundred and ninety-three pesos with 30/100), respectively. Costs according to the due dates.
3rd) By signing this document, the appellant must pay 2% of the amounts of the fines for which she is actually convicted as a fee for actions provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
