Buenos Aires, October 21, 2002.-
AUTOS AND SEEN: File No. 12.581-A, entitled: BUENOS AIRES ZONA FRANCA LA PLATA SA v. GENERAL DIRECTORATE OF CUSTOMS s/appeal, and
CONSIDERING:
I.- That at fs. 4/10 the company BUENOS AIRES ZONA FRANCA LA PLATA SA is presented by proxy and appeals against Ruling No. 065/99, issued by the La Plata Customs, in file SA 33-98-61, by which it is sentenced to pay a fine of $2.676,50, for committing the infraction provided for in art. 954, paragraphs a) and c), of the CA and payment of the sum of $932,62 is requested, as taxes that tax the importation for consumption of the merchandise that would have been missing in the SD warehouse. Equipamientos SRL, located in the La Plata Free Trade Zone. It states that the proceedings were initiated as a result of the inspection carried out by the customs service in General Warehouses Free Zone, registered under file U0348, in order to verify the physical existence of the merchandise of the direct user SD Equipamientos SRL, as a result of which a shortage of 250 dozen push locks was found, corresponding to item 3 of the stock declaration, entered through document 97.001 TRAS 008206B. He points out that the condemnatory pronouncement was based, fundamentally, on what arises from the original contract signed between SD Equipments SRL and Buenos Aires Zona Franca La Plata SA, the latter having the character of depositary, having verified the shortage during the validity of the contract, and its principal, as concessionaire of Zona Franca La Plata, is responsible for exercising control over the activities carried out by the users, for which reason it should have informed Customs of the differences detected through the stock and inventory control that is its responsibility. He states that the tax charge and claim made by Customs are based on the provisions of inc. 2), point III, Annex VII, of Res. ANA No. 3235/96, whose unconstitutionality is raised, on the grounds that this body lacks the power to determine import taxes or create tax presumptions in the Free Trade Zone, as this is an exclusive power of the National Congress. Regarding the infringement, after recalling that it is a shortage detected in a warehouse located within the La Plata Free Trade Zone and that such a difference resulted between the stock declaration made by the depositary and the actual existence, he maintains that the figure applied (art. 954 CA) requires that the inaccuracy occurs in import or export operations or destinations, while the stock declaration does not have that quality, in accordance with the provisions of art. 9 of the CA, according to which import or export is the introduction or extraction of merchandise from a customs territory and the free zone is not part of it. In subsidiary, he maintains that on the date of verification of the shortage, his client was not the depositary of the merchandise, but rather the firm Depósitos Generales de Zona Franca SA, registered under registry U0348, by virtue of the concession contract signed and approved by the Ente Zona Franca La Plata, dated October 20, 1997, as stated in Provision 01317/97. He concludes that the action cannot be directed against his principal, invoking the lack of passive legitimacy. Offer proof.
II.- That on pages 30/37 the fiscal representative answers the transfer of the appeal. He states that the plaintiff, depositary of the merchandise in stock that was introduced into the free zone, has made a declaration that differs from what was proven by the investigation carried out by the Customs, causing fiscal damage. He maintains that the plaintiff is the passive subject of imputation, since its status as depositary arises from the contract signed with the user firm of the missing merchandise - storage contract in a warehouse or general warehouses -, the contractual instrument being fully effective at the date of the events. He understands that due to its status as concessionaire, for the purposes of law 24.331 and regulations, it is responsible for the violations of customs legislation. He states that the plaintiff failed to inform the customs service of the transfer of the merchandise and the merchandise that was in the warehouse and that it would have transferred to another depositary. Regarding the unconstitutionality raised with respect to Res. 3235/96, it states that said resolution was issued in use of the powers conferred by art. 23, inc. i), of the CA and is within the scope of Law 24.331, on the General Regime of Free Trade Zones and Decree 1788/93, which regulated the La Plata Free Trade Zone, without prejudice to the basic rules of the Customs Code.
III.- That at fs. 38 the case is opened for evidence and found to have been produced at fs. 43/55, at fs. 56 the closing of the evidentiary period is declared. At fs. 61 the files are elevated to the F Chamber and are put for argument, adding at fs. 64/65 and 66/67 the arguments of the parties. At fs. 69 the files are put for judgment. At fs. 72 the production of measures for better provision is ordered, whose compliance is recorded at fs. 89/112 and 117/124.-
IV.- That the administrative proceedings have their origin in the Record of Stocks of Merchandise recorded on fs. 2, drawn up when verifying the physical existence of merchandise of the user SD Equipamientos SRL, declared in stock by the Concessionaire of the Free Trade Zone of La Plata, which reports a shortage of 250 dozen corresponding to item 3 of customs document TRAS 8206 B. On fs. 16, the instruction of a contentious summary is ordered and on fs. 20, the actions of the firm SD Equipamientos SRL (user No. 0348) are reviewed, imputing it with the alleged commission of the infraction provided for in art. 954, inc. c), of the CA, which is answered on fs. 24/26. On fs. 36/37 The Administrator of the La Plata Customs Office declares the nullity of the proceedings, disassociating the aforementioned firm from the case and orders the opening of a contentious summary against the depositary Buenos Aires Zona Franca La Plata SA, which on pages 41 is given a view of the proceedings, imputing it with the alleged commission of the infraction provided for in art. 954, inc. c), of the CA, answered on pages 44/46. On pages 75/76, Resolution-Judgment No. 065/99 is issued, by which the payment of a fine of $2.676,50 is ordered, for commission of the infraction provided for in art. 954, paragraphs a) and c), of the CA and a charge is made for the taxes owed, for the sum of $932,62. Against the indicated ruling, the firm Buenos Aires Zona Franca la Plata SA filed the present appeal before this Court.
V.- That it arises from the added administrative records that, among other foreign merchandise, 06 dozen push locks entered the La Plata Free Zone on 10/97/8206, through TRAS No.: 97-B/1000, documented by SD Equipamientos SRL, with no news, as requested by the customs guard.
That it also arises from the aforementioned transit that the merchandise was destined for User 0489 and that, according to the records of the computer system (see fs. 10) the shipment was deconsolidated on 08/10/97 resulting in the 1000 documented dozens, of which 500 were later documented and shipped to the general territory by import clearance No. 50.908/6, on 13/10/97 and 250 by import clearance No. 51.966/7, on 23/12/97, without importing 250 dozens that remained in stock and could not be found at the time of carrying out the procedure reported in the minutes on fs. 2, which originated the summary.
Given that neither the customs investigation nor the one carried out in this instance allowed us to know the destination of the 250 dozen locks that were not documented for consumption, the lack of the merchandise is fully proven, which on the other hand is not denied by the appellant. On the other hand, the latter denies having been a depositary and that for that reason, nor for being a concessionaire of the Free Trade Zone, it should be held responsible for the consequences of the shortage.
Regarding the aforementioned refusals, which the appellant raises in its defense, we must emphasize that on 01/09/97, that is, prior to the entry of the merchandise in question, the contract for Storage in warehouses or general stores that was signed with the owner of the one that turned out to be missing was approved and by which it was obliged to provide said service in a paid manner for a period of 12 months from the first entry of the user's goods (see pages 28/29 administrative act.).
It also arises from the added customs file that SD Equipamientos SRL was also admitted as an indirect user, due to the approval of the contract (page 49) that, effective from 20/10/97, linked it with the user Depósitos Generales Zona Franca SA in whose facilities the Stock Verification was carried out, which gave rise to the initiation of the summary that ended with the conviction of the firm appealing here.
It should be noted that when the merchandise entered the Zone, the contract that linked the owner with Depósitos Generales was not yet in force and, as we have seen, on the contrary, it did have an operational one with the concessionaire who agreed to provide storage services. Furthermore, as it emerges from the administrative records outlined, when the missing items were introduced into the Zona Franca La Plata, SD Equipamientos SRL was not yet an indirect user of Depósitos Generales, who as tenant of the appellant here operated the Tunquelen warehouse (see pages 48 of the administrative act), where it was intended to place the merchandise during the procedure to verify its existence, with the intervention of the concessionaire and lessor firm and without evidence that either the owner of the goods or the tenant of the warehouse participated.
That the better provision measure produced in this case, although it did not allow to clarify all the issues on which information was requested, confirmed that according to the records on pages 27/28 (referring to said pages of the administrative records) and taking into account the arrival date of the merchandise, it was received by the company Buenos Aires Zona Franca La Plata SA and according to the contract on pages 27/28 the merchandise entered the Buenos Aires Zona Franca SA warehouse (see pages 120).
It does not arise that the owner of the missing objects has requested their transfer or a change of depositary, but even if this had occurred, these are issues not enforceable against Customs and outside its jurisdiction because the obligations and rights that correspond between the concessionaire and the users are governed by the rules of common law, except for the special provisions that may be applicable (art. 216 of the CA). On the other hand, the joint liability assigned to the concessionaire by the law on Free Trade Zones is applicable to the case. Thus, section j) of art. 20 of law 24.331 provides: The concessionaire will be jointly liable with the users who violate customs legislation and the regulations of the free trade zone and art. 23 of the same law establishes: With the exceptions established by this law and art. 590 of the CA, all the penal provisions that govern the general customs territory will be applicable to free trade zones.
That, on the other hand, the regulations of the La Plata Free Trade Zone, approved by Resolution No. 420/94 of the Secretary of Commerce and Investments established in art. 22: All merchandise deposited in the La Plata Free Trade Zone must be registered by the user and by the respective concessionaire through a computerized inventory control system compatible with those used by other concessionaires, previously approved by the National Customs Administration and the Administration and Exploitation Entity of the La Plata Free Trade Zone, these organizations having permanent access to the system. Said control system must demonstrate the best guarantees of transparency and operational security…
That, for the reasons stated above, it is held that the firm Buenos Aires Zona Franca La Plata, either as a direct depositary or as a concessionaire, may be subject to proceedings for the unjustified shortage of merchandise that entered Zona Franca La Plata. Consequently, its defense of lack of passive legitimacy is not admissible, since it was awarded the concession of Zona Franca La Plata under the legal and regulatory conditions that provide for its joint liability with the users and its obligation to control the use that they make of the facilities.
In this regard, it is worth remembering that the La Plata Free Trade Zone was created by Law 5.142, which was not regulated until Decree 1991 was issued in 1668, later replaced by Decree 1788/93, from which it began to operate, developing storage, commercial, service and industrial activities for export.
That later and in a general manner, legislation was passed on Free Trade Zones through Law 24.331.
The cited provisions determine the functions and obligations of all those involved in the activities authorized in said areas, created to promote trade and the export industry. To this end, it is intended to facilitate them by reducing costs, including customs duties, subject to compliance with the intended purposes, without economic restrictions or prior deposits.
In this regard, it was foreseen that the former Ministry of Economy and Public Works and Services would be the Implementing Authority. In addition, each province where a Free Trade Zone operates must establish an evaluation and selection commission, with functions of a surveillance committee. In the case of the Free Trade Zone of La Plata, the latter is designated in the regulations as the Administration and Exploitation Body, of a public nature, and with the participation of different sectors, attributing to it functions of regulation, control and supervision.
On the other hand, it was established that the exploitation of the Free Trade Zones would be offered by concession and by public tender. It was also determined that the users may be natural or legal persons, national or foreign, who acquire the right to develop activities within the zone by paying an agreed price, and must keep separate accounts for the activities they develop outside of it.
As we have seen, the provisions provided for the different subjects participating in the operation of these Areas, some of them of a public nature - the Application Authority and the Provincial Surveillance and Administration Body - and the concessionaire and, finally, the users.
That in art. 20 of law 24.331 the obligations of the concessionaire were established, among which are the following: h) Comply with and enforce the operating and functioning regulations and the internal regulations; j) The concessionaire will be jointly responsible with the users who violate the customs legislation and the regulations of the free zone; l) Any other obligations attributed to it by the regulations of this law. Regarding this last paragraph, art. 46 provided that the intervening agencies, with jurisdiction in the operations of the free zones, will dictate the corresponding complementary regulations.
That all obligations imposed on the concessionaire in the concession area cannot be ignored by the latter, who participated in a bidding process through which its financial solvency is evaluated to face the works that are placed under its charge and also to respond to the treasury for the fiscal damage that could arise from its incorrect conduct or that of the users, given the important interests at stake.
VI.- That the complainant's claim regarding the unconstitutionality of paragraph 2) point III, Annex VII of Res. 3235/96 ANA cannot be admitted either, since it is not through this provision that taxes are created in the Free Trade Zone, but rather it only applies the legal provisions that govern the matter.
That, although the Free Trade Zone is neither a general nor a special customs territory (art. 3 of the CA) and, therefore (art. 590 of the CA), the introduction and extraction of merchandise is not subject to taxation, except for the fees for services, nor affected by economic prohibitions, this is when the normal conditions of entry and exit are met and all of this is recorded in the inventory provided for by the regulations of the system.
The CA also provides in art. 593 that: The introduction of goods into the free zone… will be considered as if it were an import… and in everything not provided for in the provisions that created it and in arts. 590 to 599 that…the general rules of customs legislation relating to import are applicable to the free zone….-
In this sense, it is unquestionable that in the case of merchandise of foreign origin not nationalized, its introduction to the Zone was in the form of a deposit with a maximum term of permanence of five years, according to art. 7 of decree No. 1788/93. In this condition, the depositary must answer for the taxes when it turns out that the merchandise is missing, because it is presumed without admitting proof to the contrary that it has been imported for consumption, without prejudice to its responsibility for the sanctions that may correspond for the illicit acts that have been committed (art. 211 of the CA). These responsibilities will continue (art. 215 of the same Code)… until the merchandise is released from the deposit and subsequently received by an authorized person, complying with the corresponding formalities (emphasis added). The cited provisions are also applicable to the storage deposit.
From the above it follows that it is not Resolution ANA 3235/96 which imposes on the concessionaire the obligation to pay the import taxes on the missing merchandise, but that its tax liability arises from the law due to its status as depositary or its solidarity with the depositary, as already stated.
VII.- That the inapplicability of the alleged infringement is based on the fact that art. 954 of the CA is based on the fact that the fact occurs during an import or export operation, since art. 9 of that Code defines these operations as the introduction or extraction of merchandise from a customs territory and the free zone is not a customs territory, does not merit careful acceptance of the provisions of art. 593 of the CA already cited. In effect, as has been said, the introduction of merchandise into a free zone will be considered as if it were an import (art. 593, par. 1, of the CA).-
In addition, art. 956 of the CA establishes that: For the purposes of applying the provisions of 954: a) declarations relating to import operations or destinations are considered as if they were imports for consumption…. The transcribed part of art. 956 has its antecedent in art. 167 of the Customs Law, amended by law 19.881, which in its final part said that…for the exclusive purposes of the sanctions of this article, declarations for temporary storage and admission will be considered as if they were for release to consumption in the market….-
Thus, the Customs Code maintained the establishment of a similar sanctioning treatment for inaccurate declarations and other unjustified differences in the documentation of definitive and suspensive destinations. The Explanatory Statement of the Code explains the difficulties that could arise from inaccurate declarations in the remaining destinations and customs operations, which are not taxed.
That the Supreme Court considered that any inaccurate declaration in the documentation necessary to carry out an import operation was included in the provisions of art. 956 (complementary to art. 954, to which reference may be made for determining the applicable penalty).
In this regard, it was stated… That the presentation of the manifest, as a declaration of the effects that are on board for unloading, undoubtedly constitutes the necessary antecedent of this operation, which refers to importation - moreover, within a framework of reasonableness, it is an act devoid of purpose in itself if it is separated from it. And given that the CA considers imported all merchandise that has crossed the demarcation line of the customs territory art. 9° - this aspect that unloading presupposes, it is only possible to attribute to the act in question the condition of having been carried out to complete an import operation without this obviously implying prejudging about the customs destination that could subsequently correspond to it… SCJN in re AGENCIA NORDICA SA, judgment of 11-06-1985.-
That the concepts expressed by the high court, although referring to other types of documentation, are fully applicable to the inaccurate declaration proven in the case. In this sense, it is clear that the stock declaration is necessary to carry out one of the activities authorized by law in the free zone, among which are import and export, in addition to the storage warehouse.
That, in conclusion, the lack of veracity of the inventory that the concessionaire of the La Plata Free Trade Zone must keep up to date as an obligation, constitutes the infraction sanctioned in art. 954 of the CA and is the disvaluable conduct in which the appellant firm incurred for which it should be penalized.
Therefore, IT IS RESOLVED:
1st) Confirm in all its parts the Ruling No. 065/99 issued by the La Plata Customs, with costs.
2º) To regulate the professional fees of Dr. … for her performance in the dual capacity of attorney representing the defendant, in the sum of seven hundred thirty-six pesos ($736), in accordance with the provisions of arts. 6, 7, 9, 37 and 38 of Law 21.839, amended by Law 24.432.
Register and notify. Sign this document by the General Secretariat of Customs Affairs, return the administrative proceedings and file them in due course.
